Dr. Phil - H 2016
Getty ImagesThis isn’t the typical copyright story.
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.
In response, Peteski Productions — Dr. Phil’s company — obtained a registered copyright on those nine seconds of video and filed a lawsuit alleging infringement against Rothman in Texas federal court.
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That’s led to a novel decision from U.S. District Court Judge Rodney Gilstrap about whether Rothman’s use of the nine-second video was a fair use under copyright law. On Thursday, Gilstrap handed Dr. Phil the victory by granting Peteski summary judgment on the fair use issue.
In arriving at the decision (read the opinion here in full), the judge first examines Rothman’s conduct upon Peteski arguments that bad faith weighs against a finding of fair use. That brings the judge to examining and comparing the situation to the one discussed in a 1985 Supreme Court opinion concerning how The Nation exploited a purloined unpublished manuscript of President Gerald Ford’s autobiography.
“Rothman did not copy to then educate the masses or to further the greater good,” Gilstrap writes. “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.”
Taking notice of Rothman’s employment agreement where she had agreed to not misappropriate statements or comments concerning Dr. Phil, Gilstrap takes the Supreme Court’s guidance to mean that fair use doesn’t excuse theft or justify deception. The judge says that Rothman’s conduct weighs against a finding of fair use, even if he also concludes that bad faith is not a per se bar to fair use.
So moving on, Gilstrap examines the purpose and character of Rothman’s use.
“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,” he writes. “Here, Rothman made no alteration to the work nor did she use it as part of a commentary or criticism. 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.”
Next, Gilstrap tackles whether the use was commercial or not. On this score, Rothman wins some points.
“Although Rothman obviously stands to gain if she is successful in her civil lawsuit in California, damages from that case are compensation for suffered harms rather than profits earned from the sale of goods or provision of services,” states the opinion. “Moreover, ‘a judicial or arbitration proceeding serves a salutary truth-seeking function, and cannot be characterized as a purely ‘commercial’ endeavor, even though money damages might well be at stake.’ Therefore, the Court finds that, at least in this case, Rothman’s use of the work is non-commercial even though it is clearly self-serving.”
As for the effect of the use on the potential market, things get interesting.
Dr. Phil’s company nodded to a market for outtakes from the show as well as an illicit market for videos showing celebrities in a less than flattering light. But the judge notes that Peteski wants to ensure nobody exploits this market.
Gilstrap writes that the plaintiff “is entitled to protect its opportunity to sell the video even if it does not wish to do so now,” but then says the plaintiff “has failed to identify evidence from which a jury could conclude that Rothman’s copying impacted that market at all.”
Nevertheless, after tallying other factors like strong protection for unpublished works, the judge concludes that a decision in favor of Dr. Phil’s company is appropriate.
Update: The headline and some further language has been revised upon contentions by Peteski’s counsel about what the video shows.
