Printed credit information on a photograph composed using a computer program may constitute “copyright management information” whose alteration is prohibited under the Digital Millennium Copyright Act, the U.S. District Court for the Western District of Pennsylvania ruled March 9 (McClatchey v. Associated Press, W.D. Pa., No. 3:05-cv-145, 3/9/07).

Denying the Associated Press's motion for summary judgment, the court sustained claims by a woman who took a picture of the hijacked United Airlines airplane that crashed in Pennsylvania on Sept. 11, 2001.

Plane Crashed Near Plaintiff's House.

On the day of the terrorist attacks, Valencia M. McClatchey of Shanksville, Pa., was a witness to the crash of United Flight 93 near her house. She photographed her view of a column of smoke rising from the wreckage. She gave the image the title “The End of Serenity” and registered it with the U.S. Copyright Office. The image has been displayed in public on several occasions, and McClatchey licensed the image several times for one-time use by news organizations and sold copies of it.

In 2002, Charles Sheehan, a writer for the Associated Press, met McClatchey and wrote an article about her. Then, Gene Puskar, an AP photographer, was assigned to take a photograph to accompany Sheehan's article. The photograph subsequently distributed on the AP's photo wire was an image of “The End of Serenity.”

In 2003, McClatchey discovered that “The End of Serenity” was posted on America Online's Web site accompanying a story about a conspiracy theory. McClatchey learned that AOL had obtained the image from the AP.

McClatchey sued, alleging that Puskar had photographed a print of “The End of Serenity” in McClatchey's photo album and then had cropped out the copyright information. McClatchey alleged copyright infringement, contributory and vicarious infringement, and removing copyright information and distributing false copyright information.

The AP--arguing that the copy McClatchey had at home did not include copyright information and that the use was fair use--moved for summary judgment on all claims.

Fair Use Claim Survives Motion.

Judge Terrence F. McVerry first determined that the court could not resolve the fair use issue at the summary judgment stage because there existed outstanding questions of material fact. First, the court said, the use made by the AP might reasonably be construed as a commercial rather than educational use. The court, noting that the AP distributed the image separately from Sheehan's article without any notation that the two must be used together, said:

The text of the article focused on the woman who took the “End of Serenity” photograph and Ms. McClatchey believed that Puskar was taking a photograph of her holding that photograph. A year [had] passed from the time of the crash depicted in the photograph and the article described the events in [McClatchey]'s life during that year. Although the photograph certainly depicts a newsworthy event, that event was no longer timely and had been extensively chronicled. Thus, there was arguably no significant “newsworthiness” in disseminating the photograph, by itself, a year later.

The remaining three fair use factors could also be reasonably judged as weighing in McClatchey's favor after a full examination of the facts, the court concluded.

Turning to the secondary liability claims, the court concluded that there did seem to be some evidence of secondary infringement by the AP's subscribers, and that McClatchey had pleaded prima facie cases for both contributory and vicarious infringement.

Printed Information Might Be Protected.

Finally, the court determined that there also existed outstanding issues of material fact concerning McClatchey's crediting claims under the Digital Millennium Copyright Act of 1998, 17 U.S.C. §1202.

Section 1202(a) prohibits the provision and distribution of false “copyright management information.” Section 1202(c) creates eight categories of such information that is conveyed together with copies of works.

The AP argued that those provisions did not apply here, because the copyright notice on McClatchey's photographs was an ordinary printed or written notice, not digitized code accompanying a digitized work.

The court concluded that McClatchey's use of a computer program to print hard copies of her photograph with the copyright information qualified as copyright management information under the DMCA. Citing IQ Group Ltd. v. Weisner Publishers LLC, 409 F.Supp.2d 587 (D.N.J. 2006), the court said:

Ms. McClatchey testified in her deposition that she used the My Advanced Brochures software program on her computer, in a two-step process, to print the title, her name and the copyright notice on all printouts of the photograph. The Court finds that this technological process comes within the digital “copyright management information” as defined in the statute. Moreover, Section 1202(c) defines the term broadly to include “any” of the information set forth in the eight categories, “including in digital form.” To avoid rendering those terms superfluous, the statute must also protect non-digital information.

The full text of McClatchey v. Associated Press will be published in an upcoming issue of Media Law Reporter.