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In late March, television personality Dr. Phil McGraw is scheduled to go to trial against a former employee named Leah Rothman, whom he accuses of copyright infringement. If Dr. Phil gets his way, a jury won’t hear of Rothman’s claim that working on the show caused her hair to fall out. If Dr. Phil gets his way, there won’t be any references at trial to how he allegedly yells, uses profanities, makes employees cry and uses scare tactics in the workplace. Nor if Dr. Phil gets his way, would there be any evidence presented about how the show reportedly mistreats guests by supplying them with drugs and alcohol.
On Thursday, an attorney for Peteski Productions — Dr. Phil’s company — made a motion to preclude evidence and testimony related to these subjects from being brought up at the prospective trial. But frankly, none of the above qualifies as the most audacious request. Peteski also demands that Rothman not be able to introduce any evidence that she did not commit copyright infringement.
Who is Rothman — and is the copyright infringement so clear she should not be able to defend liability on the matter? How Kafkaesque can a trial over copyright (and various other state misappropriation laws) get?
Rothman worked as a segment director on his show for 12 years. She once sued Dr. Phil on claims of causing her emotional distress and falsely imprisoning her. Specifically, during a work meeting, Dr. Phil is said to have locked the door and screamed at employees for leaking internal information to the press. Before she filed her own suit, Rothman attempted to get evidence by accessing a database of videos from the Dr. Phil Show archives and recording on her iPhone some behind-the-scenes footage that she thought would aid her. The case settled. The videos were never used. Now, in a bit of score-settling, Dr. Phil is suing Rothman for stealing those videos.
Last August, U.S. District Court Judge Rodney Gilstrap issued a notable decision by determining that Rothman couldn’t raise a fair use defense. The Texas judge decided that what Rothman did wasn’t much of a transformative use and that her actions in taking the videos were conducted in bad faith.
“Rothman did not copy to then educate the masses or to further the greater good,” Gilstrap wrote. “She copied to aid her pending lawsuit seeking money damages where she is the only plaintiff and sole potential beneficiary.”
It got worse for Rothman.
In November, the judge refused her motion to transfer the case to California, where both she and Dr. Phil reside. In the decision, Gilstrap wrote that the trial would be of “limited nature,” adding in a footnote that it would address the issue of damages and possible injunctive relief “given the Court’s finding of no fair use defense and Rothman’s admission to infringement.”
Has Rothman admitted liability? That certainly doesn’t seem so by a summary judgment motion she filed on January 4.
First, though, consider the videos that Dr. Phil claims have been infringed.
There’s the nine-second video that became the subject of Gilstrap’s August ruling. But there’s also two other videos that Peteski learned about when Rothman gave a deposition in December. These two videos are described as showing employee meetings from 2015. But Dr. Phil hasn’t obtained Rothman’s copies. He’s brought an emergency motion to force her to hand them over, but he apparently doesn’t have them yet.
This is important because the videos haven’t been registered with the U.S. Copyright Office. In Rothman’s summary judgment motion, she asserts that the infringement claims on these videos fail accordingly, or at least, Peteski can’t recover statutory damages without registration. Dr. Phil’s company responds that the sole reason it has not registered its copyrights is because Rothman refuses to produce them. (Although he didn’t shoot the video, McGraw claims it’s a “candid recording of personal expression” and authored by Peteski as a work made for hire.) It’s a circular debate, and not the only facet that makes this case such a bizarre one.
Next, consider the nature of the supposed infringement. This isn’t a case involving someone who uploads a pirated movie to the internet. It’s not a case over a studio that plagiarizes another author’s work. It’s not even particularly similar to the case concerning a magazine that published the unpublished manuscript of the President of the United States.
“Simply put, Rothman did not ‘actually use’ any of the Videos,” wrote Rothman’s attorney Dalia Khalili in a brief last week. “Although Rothman produced Video 1 in her state court action in discovery to the defendants, she was required to do so under California law. Even though Rothman included Video 1 on her exhibit list in her state court action, the video was never introduced into evidence or presented at any hearing. Moreover, Rothman gained no monetary benefit from it.”
Dr. Phil’s attorneys dispute the lack of dissemination, but also say that it doesn’t matter.
“All of the video footage in the DPS Video Vault (the ‘Vault Videos’), including candid videos and outtakes such as the Work, have value and potential value to Peteski,” writes attorney Charles Babcock. “In fact, any unauthorized copies of any of the contents of the Vault Videos have value and potential value to Peteski. The potential value of those videos includes their potential use on episodes of the DPS as well as their use in other conceivable fashions, such as in documentaries or special broadcasts or features. Any unauthorized copying of any Vault Videos has a meaningful impact on the potential market for such video. Even the knowledge that an unauthorized copy is in the possession of a third party could negatively impact Plaintiff’s willingness and ability to use such video or any portion thereof in a subsequent work. This would mean a direct negative impact on the potential market for such video.”
According to Peteski, it’s entitled to a reasonable license fee, which it values somewhere between $15,375 and $928,453. Dr. Phil’s company has an expert pointing among other things to the $15,000 that TMZ paid for a football player assaulting his fiance and the $2 million for an exclusive story about Angelina Jolie and Brad Pitt.
Rothman’s side counters this is all speculation and heresay, and just as importantly, there is no causal link between the infringement and purported damages. Rothman also argues that she really hasn’t even denied him use of the videos.
So another circular debate. Rothman may have copied the videos, but there doesn’t seem to be any hard evidence she actually sold them to a tabloid. But Dr. Phil says that she wanted to — and he could have, but for the fact that Rothman copied them. Or so go the crazy arguments.
Will this really be the “limited nature” trial that Judge Gilstrap envisioned? Who knows, but if the value of these videos is really in question, it seems odd to think that a trial wouldn’t tackle the unseemly side of the marketplace for unseen Dr. Phil videos. That would conceivable include the public’s appetite for seeing Dr. Phil yell, use profanities, make employees cry, and keeping them hostages in the workplace. Not that such things are definitely shown in the videos. But there had to be some value, no? After all, it’s Dr. Phil’s company nodding to the tabloid market in support of a huge damages award.
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