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

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 publ