Federal Appeals Court Reinstates Copyright and Defamation Case against NJ Shock Jocks

A New Jersey federal appeals court has reinstated a copyright and defamation lawsuit against a New Jersey radio station and its DJ's, one of whom is currently a co-host of the popular WFAN Sports talk radio show of Boomer & Carton.   Access to the U.S. Third Circuit Court of Appeals written opinion issued in Murphy v. Millennium Radio Group, Case No. 10-2163, can be found here.

In this case the plaintiff, Peter Murphy, alleges that the defendants violated the Digital Millennium Copyright Act for failure to post his credit for a photograph appearing on the radio station's website.   In addition, Murphy alleges that both DJ's defamed him during a 45 minute broadcast of their radio show by calling him a "man not to be trusted" in business dealings and suggesting he is gay.

Murphy had taken a photo of 101.5 FM DJ's Craig Carton and Ray Rossi for the New Jersey Monthly magazine, which had named them New Jersey's "best shock jocks."  At the time, Carton and Rossi were known as the "Jersey Guys" on New Jersey 101.5 radio show.  The photo (shown here) depicted them standing behind a plcard bearing the station's name, with no other visible apparel - essentially giving the impression that both men were naked but for the sign in front of them.     

The radio station invited website visitors to alter the picture with photo-editing software, and displayed the altered versions on its website.   Twenty-six (26) of the altered photos eventually were posted, according to the decision.  However, the website did not include the credit to Murphy, which had appeared in the print version of the original unaltered photo.  (Murphy’s photo credit and copyright information was contained in the inner margin of a page in the New Jersey Monthly magazine, not as embedded data.)  Murphy claimed the omission violated the Digital Millennium Copyright Act.


When Murphy first filed suit in U.S. District Court in 2008, attorneys for the shock jocks argued they did not violate any copyright infringement laws because the photo on the website constituted fair use of his work.

As codified in 17 U.S.C. § 107, the factors governing whether a particular use of copyrighted material is “fair” are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Deciding the photo met the court’s four-pronged test for fair use and that the alleged defamatory remarks were nonactionalbe, rhetorical hyperbole, U.S. District Judge Joel Pisano dismissed the suit.

However, a three-judge panel of the 3rd Circuit Court of Appeals concluded Judge Pisano got it wrong and reinstated Murphy’s lawsuit, including the defamation claim.

The appeals court said the lower court erred in finding that the defendants' reproduction of the unaltered image on the website was a fair use, and that the trial judge was too quick to dismiss the defamation claim without first giving Murphy the opportunity to depose Carton and Rossi. 

New Jersey’s previous court ruling had said the copyright information has to be part of that automated system and Pisano followed that ruling. But the 3rd Circuit said the copyright information does not have to be part of an automated system.

Although Murphy had asked the appeals court to rule on whether an allegation of homosexuality is susceptible of a defamatory meaning under New Jersey law, the panel declined to decide that issue.