Awful Court Decision Says Dr. Phil Producer's Video Not 'Fair Use'
from the wtf? dept
Update:: The lawyers representing Dr. Phil’s production company, Peteski Productions, have contested some of the statements made both in the original link we used from The Hollywood Reporter, and in our post below. THR has updated its story, and we’ve matched those updates. In particular, Peteski says that the video that Rothman copied — which she claimed was evidence for her false imprisonment claim — was actually something else entirely. From the filings, Rothman says that the video was a “bona fide example of Dr. McGraw’s conduct for her lawsuit,” but Peteski says it was not showing evidence of the “false imprisonment” claim at all. Peteski’s lawyers argue it was something she sought to use “for commercial gain” (which the Judge disagreed with as noted below). Peteski’s lawyer also implies that the false imprisonment claims are frivolous (noting that 200 to 300 people were at the meeting, and only Rothman sued — and argues that the real reason she used her iPhone to copy the nine second video was for “exploiting it with other media.” We’ve updated the article to clarify that the video is not of the claimed “false imprisonment” — and that there is some dispute over what the video actually could be used for.
We’ve seen some awful copyright rulings over the years, but this latest one from Judge Rodney Gilstrap in Texas* is a real corker. First covered by Eriq Gardner, over at the Hollywood Reporter, the story is a complex one involving TV personality Dr. Phil and accusations of him imprisoning a producer who worked for him. What could that possibly have to do with copyright? Well, read on…
* If you recognize the name, it’s because for the past few years, he’s handled a huge number of patent cases. Indeed, last year alone, he (yes, just this one judge) handled 20% of all patent cases in the US
Gardner sums up the background to the lawsuit nicely:
In 2015, television personality Dr. Phil McGraw was sued by Leah Rothman, who worked as a segment director on his show for 12 years. She alleges suffering emotional distress and false imprisonment when during a meeting, Dr. Phil locked the door, yelled profanities and threatened employees for supposedly leaking internal information to the press. Before she sued, Rothman says she attempted to get evidence by accessing a database of videos from the Dr. Phil Show archives and recording on her iPhone a nine-second clip of something she thought would be valuable to her.
All seems perfectly reasonable, right? But Dr. Phil’s company, Peteski Productions, registered the copyright on just the 9-seconds of video she taped with her iPhone… and sued her for copyright infringement. Yes, really. Because nothing says “I’m contesting the claim that I falsely imprisoned you” like “wait, your supporting video evidence violates my copyright.”
This should be an open and shut case for a whole host of reasons. But, as a first pass, Rothman’s lawyers pointed out that Rothman was clearly protected by fair use. And she is. Except not according to one of the weirdest fair use analyses I’ve ever seen, courtesy of Judge Gilstrap. It should have been obviously fair use just on the transformative use question — seeing as she wasn’t using the clip for a TV program at all, but as evidence in her own case against Dr. Phil. And, it was just a short clip — and she wasn’t “selling” it. And it wouldn’t harm whatever “market” there was for that clip. In short, this should be fair use. Easily. But… nope.
So let’s go through Judge Gilstrap’s fair use four factors analysis. First up — the purpose and character of the use — which looks into the nature of the use, whether it was transformative and whether it was for commercial use. Again, to me, this seems quite clear: the purpose had nothing to do with the reason the work was created in the first place, making it obviously transformative. But, Judge Gilstrap wades into swampy waters by claiming that because Rothman obtained the video via “bad faith” it’s not.
Rothman did not copy to then educate the masses or to further the greater good. She copied to aid her pending lawsuit seeking money damages where she is the only plaintiff and sole potential beneficiary. It is possible that a breach of contract or some other act of bad faith may sometimes be necessary to further an important public interest and therefore such conduct might not always weigh against fair use. However, there is a difference between a defendant who ?purloins? a private manuscript or confidential video for personal gain and one who obtains, or even misappropriates, materials of significant public interest…. Here, there is no countervailing public interest because Rothman copied the work at issue ?solely? for use in her own lawsuit.
This seems wrong on multiple levels. He points mainly to other cases where “bad faith” was an issue, mainly Harper & Row v. Nation Enterprises, in which The Nation published a large excerpt of Gerald Ford’s memoir, and it was deemed not to be fair use, in part because of the Nation’s own actions and intent. But, in that case, it was clear that what the Nation had done was to publish the excerpt from the book to reveal what was in the book and to undermine the sales of the actual book. In other words, it was in competition with the book.
In this case, the intent was to use it as evidence. That has nothing to do with the copyright aspect.
Similarly, Judge Gilstrap’s weird focus in claiming that she was the “sole potential beneficiary” and there was nothing here to “further an important public interest” also seems… just wrong. Rothman’s effort was to expose what she felt was dangerous behavior by a very public figure. How is that not furthering the public interest?
Gilstrap notes other cases where “bad faith” harms fair use rulings, but the “bad faith” is always about infringing the copyright. Here, he seems to be arguing that the “bad faith” is… because she wanted to prove something bad about Dr. Phil. I can’t even see how that’s “bad faith” at all.
From there, Judge Gilstrap looks at whether the use is transformative. Again, this should be an easy yes, given that the use was for an entirely different purpose. Hell, Congress even points out that “reproduction of a work in … [a] judicial proceeding” is an example of what is meant for fair use. Gilstrap even quotes that line… and then twists himself into something of a logical pretzel to not care much about it:
While it is true that many courts and commentators have acknowledged the general principle that use of a work in a judicial proceeding may be considered fair use, fewer have addressed whether copying an entire work in preparing a complaint is transformative. For example, Wollersheim, upon which Defendant relies, includes only a cursory discussion of fair use and makes no mention of transformativeness…. Instead, she copied the work to give to her lawyers in her California lawsuit. Even if such a use is transformative, it is not highly transformative.
WHAT?!? Isn’t the lawsuit she filed based, in part, on the video “commentary and criticism”? This seems to completely twist the meaning of transformativeness to make it nonsense.
Onto commercial v. non-commercial. Here, at least, Gilstrap admits that using it in a lawsuit is “non-commercial” though he knocks it as “self-serving.” Peteski claims that the judge accepted all of Rothman’s argument as true at this stage of the legal process, and that it has evidence that Rothman was motivated by profit — but that’s not clear from the ruling. If this were in response to a Motion to Dismiss, it would make sense for the judge to accept one side’s arguments as true, and not look at evidence. But this is a ruling on a Motion for Summary Judgment, at which point, the judge can weigh some of the evidence. Still, given his arguments before, he weighs the first prong heavily against Rothman, and (as is often the case) the first prong is considered the most important in a fair use ruling.
From there, we got to the “nature of the work.” Again, it seems clear that this should weigh in Rothman’s favor. She took a short video clip to show, as she claimed, evidence of Dr. Phil’s actions. It’s evidence. But Judge Gilstrap says, first, that the “factual v. creative” nature makes it “neutral” — i.e., favoring neither party, but that because it’s “unpublished” that weighs “strongly against fair use.” Again, this appears to be misapplying the rules on “unpublished” works. The idea behind that part of the fair use test is to avoid someone revealing something prior to it actually being published and thus undermining the market for it. But that’s not the intent at all here. There is no indication that the clip was going to be published at all.
The third factor is “the amount used.” And, again, I’m dumbfounded by Gilstrap’s reasoning. Remember, this is a 9-second clip that Rothman filmed using her iPhone. Nine seconds of a much larger archive. But… because Dr. Phil’s company registered just those nine seconds after Rothman had filed her lawsuit, Gilstrap argues that it’s “the entire work.”
Neither side disputes that Rothman copied the entire work by recording the nine-second video from The Dr. Phil Show archives.
Of course, this also goes completely against other courts — such as the 2nd Circuit (which admittedly, Gilstrap’s court is not in…) — which have said the appropriate determination on this prong is whether or not the amount of the work was more than necessary for the use. Here, clearly, the nine seconds was what Rothman felt was necessary to demonstrate some aspect of Dr. Phil’s past behavior.
Finally, we get to “the effect on the market.” At least on this one, no pretzel logic can convince Gilstrap that this video harms the market for that clip and agrees that it “weighs in favor of fair use.” This, despite the fact that Dr. Phil’s company tried to argue that because “there is an illicit market for videos showing celebrities, such as Dr. McGraw, in a less than favorable light.” The judge properly notes that there’s no evidence that Rothman was trying to sell the clip into such a market and gives her this one point for fair use.
But adding it all up, it’s pretty clear where Gilstrap has come down on this one, and it’s against fair use.
Defendant, by her own admission, took an unpublished work that did not belong to her in violation of confidentiality agreements with Plaintiff ?solely? for her personal benefit rather than for commentary, criticism, or public benefit. In light of these circumstances, based on the undisputed facts in the record, and after carefully weighing all the factors discussed above, the Court concludes that summary judgment in favor of Plaintiff is appropriate.
This is craziness. The ability to misuse copyright in such a manner should be horrifying. It certainly appears that the clear intent here — even just in registering the copyright on just those nine seconds of video, let alone suing over it — was to burden Rothman for suing Dr. Phil and to try to silence her. This is not the purpose of copyright, and this ruling makes a complete travesty of copyright laws. Even those who tend to support strong copyright should be horrified at this result. Silencing someone trying to prove that her boss falsely imprisoned her is not the purpose of copyright.
Hopefully Rothman appeals, and the appeals court smacks this one down. It’s an awful ruling in an awful case.