Awful Court Decision Says Dr. Phil Producer's Video Not 'Fair Use'

from the wtf? dept

Tue, Sep 5th 2017 9:39am — Mike Masnick

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, dr. phil, fair use, leah rothman, phil mcgraw, rodney gilstrap
Companies: peteski productions

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

aerinai (profile), 5 Sep 2017 @ 9:06am

Severe incompetence
Just goes to show you don't need to actually be good at your job to keep your job.
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 9:48am

The court will subpoena the tapes ... so I guess that means they will be "lost" or something.
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 10:23am

This comment censored.
The political speech that would have been posted here was self-censored due to compulsory surveillance.

Have a nice day.
[ link to this | view in thread ]
Ryunosuke (profile), 5 Sep 2017 @ 10:26am

uhhh... by claiming copyright on the videos... does that mean that Dr Phil is acknowledging that the events IN the video actually happened?

Also, since when did copyright dictate whether or not it can be used as EVIDENCE IN THE COURT OF LAW?
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 10:26am

Corrupt and tone deaf Judge should be imprisoned for dereliction of his duty.
Here we get a fine example of a judge ignoring both the letter of the law and its intent entirely with the most bogus reasoning ever. Its very clear he is biased in this case and probably against fair use itself. its no wonder the guy oversaw so much of the patent cases. He seems rather biased towards maximalism when it come to granting monopoly power steming from both copyright and patents.
[ link to this | view in thread ]
Roger Strong (profile), 5 Sep 2017 @ 10:28am

Re: Severe incompetence
As contempt of court is illegal, the court has an obligation to not invite contempt. Someone needs to remind Judge Gilstrap that this implies rulings which are above contempt, not beneath it.
[ link to this | view in thread ]
That Anonymous Coward (profile), 5 Sep 2017 @ 11:00am

From a mind that determines a patent covering a plastic circle is infringed by a round icon on a phone... you expected high caliber legal understanding?
[ link to this | view in thread ]
michael, 5 Sep 2017 @ 11:15am

Re: This comment censored.
That probably sounded relevant and poignant in your head, rather than pointless and juvenile.

Try harder.
[ link to this | view in thread ]
Another anonymous coward, 5 Sep 2017 @ 11:15am

The ruling might also be a result of the judge's fear of his own bad behavior being caught on camera.
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 11:28am

Re:
I wonder if we can use his prior rulings to prove his is incompetent to judge technical issues... Although if he figures out we are talking about him, he might rule adversely just because he can.
[ link to this | view in thread ]
Machin Shin, 5 Sep 2017 @ 11:34am

Re:
Kind of makes you wonder doesn't it. He can claim copyright on that short clip so why can't a drug dealer claim copyright on his text messages?
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 12:02pm

If there's good news? Because the copyright was registered after the infringement, statutory damages and attorney's fees cannot be sought. (See footnote on page 17 of the decision.) And, as the judge notes, the plaintiffs failed to identify evidence of any impact on the market, and the woman's use was ruled noncommercial.

So, what exactly are the actual damages they're seeking to recover? What's their financial loss here? Are they looking for an award of $1? Because that seems to be where they are headed.

This decision doesn't seem like it would be helpful to the company in regards to the other lawsuit, either. Even if the woman is ordered to destroy her copy, the video can be subpoenaed and used as evidence (and they certainly can't claim it doesn't exist, at this point.)
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 12:03pm

Re:
Could the clip actually be some 'acting' not 'reality'?

That would at least explain why one would register the copyright on such material.
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 12:25pm

Re:

(and they certainly can't claim it doesn't exist, at this point.)

Unless it got destroyed by that minor weather event that hit Texas recently.
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 12:34pm

Re: Re: This comment censored.
It appears to me that a lot of what used to be said on the net, isn't getting said anymore. I attribute that to the decline of the right to speak anonymously. Personally I know there is a couple of things about this article that should be said that won't be. I won't say them for fear of institutional retribution, and I'm pretty sure I'm not the only one here thinking that.

Perhaps it's time to start putting a metric on that. Should TD add a "no comment" button? The purpose would be to metric how much speech that would have been posted on their board, isn't being posted, as a result of the chilling of free speech caused by the FCC's policies.

"chilling effect" is something that should be measured, should it not?
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 12:52pm

Re: Re:
It seems that it was in the digital archives. I suppose it's possible they don't keep offsite backups of their archives, but that seems downright stupid for a business in a hurricane zone. (If they even are in the hurricane zone - Texas is big, and I don't know exactly what city they are in.)

But also, that weather already happened - if they didn't inform the court and insisted on the only remaining copy being destroyed, while they *knew* it was relevant evidence in another proceeding, I'm pretty sure that would count as intentional spoliation of evidence, and the courts really frown on that sort of thing.
[ link to this | view in thread ]
JoeCool (profile), 5 Sep 2017 @ 12:53pm

Re:
I imagine the "damages" they wish to recover equals the payout they'll have to make for making the case against them go away. Pay $500,000 for "imprisoning" this employee, then collect $500,000 from her for copyright violations. I'll bet a lawyer is getting a big bonus for thinking of that.
[ link to this | view in thread ]
Hugo S Cunningham (profile), 5 Sep 2017 @ 1:04pm

Re: Corrupt and tone deaf Judge should be imprisoned for dereliction of his duty.
Impeachment would suffice. Then Congress should refuse to confirm any replacement in the Eastern District of Texas (and maybe sell it back to Mexico).
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 1:27pm

Re: Re:
A lawyer could bill them $500,000 and they still save money too!

$500,000 payout + lawyer fees
cost more than
$500,000 payout + $500,000 pay in + $500,000 in lawyer fees
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 1:46pm

If only the defendants in the Playpen sting had argued the copyright side of the argument, rather than just the fourth amendment, they would have gotten off easily.

After all, the government clearly acted in bad faith when running the site, and they used the entire contents of the site, which was clearly both the entire work, and far more than actually necessary.
[ link to this | view in thread ]
David, 5 Sep 2017 @ 1:48pm

Perfectly consistent.
Gilstrap is basically Eastern Texas, the place where patent plaintiffs go to make money.

When your view of your court is "may the best-equipped gladiator win" rather than "may justice win", obviously video evidence is a commercial asset.

And running his court like a business makes those who are into patents for money rather than justice flock to him.

So Rothman thinks she can ruin the running rates for evidence by providing her own? That's like bringing your own food into a restaurant and asking for plates.

Or something. I have to admit I have little enough idea of what Gilstrap is thinking. But I have even less of an idea of what all those people responsible for letting him continue to run his justice show are thinking.
[ link to this | view in thread ]
tin-foil-hat, 5 Sep 2017 @ 2:52pm

No Surprise
The legal system protects the oligarchy: itself, the government and the wealthy. I can predict the outcome of any court case 99% of the time. What happened to all the conservatives? Both parties support their own flavor of fascism. Freedom has been wiped out and the constitution is meaningless. For what? Opression and control of the other side. Wedge issues. The drug war. Putting people in jail.
[ link to this | view in thread ]
Matthew Cline (profile), 5 Sep 2017 @ 4:19pm

Re: Re: Re: This comment censored.

Personally I know there is a couple of things about this article that should be said that won't be. I won't say them for fear of institutional retribution,

Retribution from whom? Dr. Phil? The judicial system?
[ link to this | view in thread ]
Anonymous Coward, 5 Sep 2017 @ 5:27pm

Re: This comment censored.
Fair use really rustles your jimmies, huh Hamilton, right?
[ link to this | view in thread ]
JMT (profile), 5 Sep 2017 @ 5:33pm

Re: Re: Re: This comment censored.
That's the stinkiest load of BS I've read in ages. Any 'fear' you have about posting here is entirely manufactured so you can attempt to make yourself out as some sort of victim. Get over yourself.
[ link to this | view in thread ]
Mike Masnick (profile), 5 Sep 2017 @ 6:13pm

Updated
We've updated the post based on some comments from a lawyer representing Dr. Phil's production company. We've explained the updates in an update paragraph at the top of the article.
[ link to this | view in thread ]
AnonCow, 5 Sep 2017 @ 7:03pm

That ruling is completely wrong that if you didn't know better you would think the judge is on Dr. Phil's payroll.

It will be overturned unless the appeals court is also a bunch of braindead, white trash hillbillies. Oh, wait, what state? Texas? Never mind. Judgment stands.
[ link to this | view in thread ]
Cowardly Lion, 6 Sep 2017 @ 2:21am

My One Take
Eastern Texas speaks for itself these days, as does US copyright law. My one take on this piece is what a douchebag this Dr. Phil is. I'd never heard of him, and I'm glad.

http://www.urbandictionary.com/define.php?term=dr.%20phil&defid=1373786
[ link to this | view in thread ]
Anonymous Coward, 6 Sep 2017 @ 8:31am

Gilstrap appears to be a real awful judge, doing an awful job. Usually the only way someone can look so dead stupid so often is to be pretending to be dumb so that they can take bribes, but maybe he's just really bad at his job.
[ link to this | view in thread ]
Jim A, 6 Sep 2017 @ 10:53am

ammount used.
I assume that the registration of the copyright was AFTER it was submitted. So this 9 seconds is only the "whole" of the work because of the selection of 9 seconds that Rothman made. If this stands than ANY conceivable use of material is potentially of the "whole work" because the "whole work" is created from the smidgen used. This is in marked contrast to Texaco vs. AGU where an article from a journal was declared to be the "work" of which the "whole" was copied, rather than the article being considered a much smaller percentage of the entire year's subscription. At least in that case the article had an identifiable beginning and end and individual authorship. In this case they could just as easily copyrighted each individual second or even frame and claimed multiple infringements.

Also, ISTR that there has been a ruling that the most important factor of the four, is the effect on the commercial market, which in this case is minimal.
[ link to this | view in thread ]
Anonymous Coward, 6 Sep 2017 @ 11:45am

Re: Re: This comment censored. (OT)
Regardless of whether what you think about me personally, the fear of political retribution is real. Note that TD has be subpoena'd for user data before, not that that is really necessary. While you trinity of jerkoffs have lots to say, you didn't bother answering the question. Which was more succinctly:

Can and should the chilling effect on free speech be metric'd?

Which I acknowledge is OT. But it is a question that directly effects the ability of TD to function as a fifth estate. And frankly, if you follow TD, and you aren't feeling some pressure from the current evolution of free speech law, then you're probably a sock puppet.

Why else would you be here?
[ link to this | view in thread ]
Captain Kirk, 7 Sep 2017 @ 3:43am

Re:
"by claiming copyright on the videos... does that mean that Dr Phil is acknowledging that the events IN the video actually happened?"

Just because there is copyright and you saw it on television, does not mean that what you saw is real.
[ link to this | view in thread ]
Anonymous Coward, 7 Sep 2017 @ 3:14pm

I stopped reading as soon as I saw Gilstraps name. Nobody that corrupt is going to give a fire ruling.
[ link to this | view in thread ]