Thomas J. Cafferty, Nomi I. Lowy and Lauren James-Weir of Scarinci Hollenbeck’s Media Law Group won a major victory in federal court recently when Judge Joel Pisano granted summary judgment in favor of their clients, Millennium Radio Group, LLC (owner of WKXW 101.5 FM), and “shock jocks” Craig Carton and Ray Rossi, Defendants in the action.
The lawsuit stemmed from a photograph that was taken by photographer Peter Murphy, who was hired by New Jersey Monthly to illustrate NJM’s annual “Best of Jersey” awards in which Carton and Rossi were named the State’s top shock jocks for 2006. The photograph featured Carton and Rossi, seemingly nude, behind a sign identifying 101.5 FM, WKXW, the radio station for which they both worked at the time. Shortly after the photograph appeared in NJM, Defendants copied it and posted it on their WKXW website to inform their listeners of their award. Listeners then began submitting parodies of the photograph and Defendants posted thumbnail versions of these images on the website. At some point thereafter, Murphy’s attorney wrote to the radio station accusing the station of violating Murphy’s copyright. According to Murphy, after the letter was sent to the station, Carton and Rossi made certain on-air comments about Murphy, characterizing him in a factual way as “a man not to be trusted” in a business environment; a man who “will sue you if you have business dealings with him” and, in substance, as a man with whom “a person should avoid doing business.” Plaintiff further alleged that Carton and Rossi discussed the manner in which Murphy had them pose for the photograph and “derogatorily inferred Plaintiff was a homosexual.”
Murphy ultimately filed suit against Defendants alleging various copyright violations, violations of the Digital Management Copyright Act (DCMA) and defamation claims. Prior to any depositions being taken, Defendants filed a motion for summary judgment. In response, Plaintiff filed a motion asserting that further discovery was needed and that the summary judgment motion was premature. Defendants countered that no further discovery was needed as Defendants were accepting as true, solely for the purposes of the summary judgment motion, all facts as asserted in Plaintiff’s Complaint. The Court agreed with Defendants and allowed the summary judgment motion to go forward.
Defendants’ motion for summary judgment included arguments that (1) the Digital Management Copyright Act did not apply to the facts of this case; (2) Defendants’ use of the work was classic “fair use;” (3) the on-air statements of Carton and Rossi were nothing more than rhetorical hyperbole; and (4) the assertion that someone is homosexual is not defamatory. The Court agreed with these arguments and granted summary judgment in favor of Defendants on all counts.
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