37541052 – belchonock

Television host and psychologist Dr. Phil McGraw got just what the doctor ordered when a district court in Texas awarded summary judgment on Dr. Phil’s copyright claim against the woman who sued him in 2015 for alleged false imprisonment and infliction of emotional distress.

Leah Rothman, a segment director for the Dr. Phil Show from 2003 to 2015, claimed she suffered emotional distress when Dr. Phil allegedly locked her and approximately three hundred other show employees in a room, demanded they turn off their cell phones and threatened them for supposedly leaking internal information to the press.  Before filing suit, Rothman accessed a database of videos from the show’s archives and copied a nine-second clip to her iPhone which she thought could be useful evidence to prove her case.

In response, Dr. Phil’s Texas-based production company Peteski Productions, Inc. registered the footage with the U.S. Copyright Office and filed for infringement.  Rothman argued fair use, but Judge Rodney Gilstrap of the U.S. District Court for the Eastern District of Texas disagreed.  Although use of a work in a judicial proceeding is ordinarily fair use, Gilstrap held Rothman’s bad faith conduct precluded the defense.  The court found that Rothman had breached multiple employment and confidentiality agreements when she purloined the material and did so to serve her own interests and not the public at large.

It’s up for debate whether a finding of bad faith should cut against fair use.  In the landmark decision Harper & Row Publishers, Inc. v. Nation Enterprises, the U.S. Supreme Court gave significant weight to the defendant magazine’s knowing exploitation of President Gerald Ford’s unpublished memoirs in ruling against fair use.  Conversely, the Court in Campbell v. Acuff-Rose Music, Inc. stated in a footnote that bad faith should not be a central factor in the fair use analysis.

Here, Gilstrap leaned toward Harper & Row, concluding “conduct involving a violation of law or breach of confidence weighs strongly, though not dispositively, against a [finding of fair use].”  Although the court acknowledged 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 favor a finding of fair use, Gilstrap determined Rothman’s appropriation to be solely self-serving.  As a result, the court found Rothman’s arguments even less persuasive than those of the defendant who lost on fair use in Harper & Row.

Rothman has not released a statement and has yet to file a notice of appeal.