Dr. Phil Misuses Copyright In A False Imprisonment Claim

When a court gets it wrong -- horribly wrong....

Dr. Phil McGraw (public domain via Wikimedia)

Copyright is supposed to protect an author’s interest in his work, but sometimes rightholders attempt to misuse their intellectual property rights in a variety ways, including to stifle competition, eliminate criticism, or censor speech. Fair use, as I’ve mentioned before, generally acts as a First Amendment safeguard and can guard against such misuse, among other purposes. But sometimes, a court gets it horribly wrong, as the district court in the Eastern District of Texas did last week in a case that really should have no intellectual property dimension to it.

The basic facts are these: television personality Dr. Phil McGraw was sued by a segment director on his show, Leah Rothman. Rothman filed claims against Dr. Phil for false imprisonment and emotional distress. In an attempt to secure evidence of behavior and conduct before initiating litigation, she accessed a database of videos from the Dr. Phil Show archives and recorded a nine-second clip of what happened on her phone. The clip was of unaired footage from the Dr. Phil Show, demonstrating what Rothman was using as an example of his behavior (not of the false imprisonment, which allegedly occurred during a meeting with staff). After Ms. Rothman filed the lawsuit, Dr. Phil’s company obtained a registered copyright of the nine-second video recording from Rothman’s phone and claimed infringement.

Eriq Gardner of The Hollywood Reporter, where I first saw this story, called the United States District Court Judge Rodney Gilstrap’s decision “novel,” when the judge granted Dr. Phil summary judgment and rejected Ms. Rothman’s fair use argument. “Novel” is one word for it, but I’ll be more blunt. This is a crazy decision that bears no reasonable relationship to fair use jurisprudence today. Had Judge Gilstrap found in favor of Rothman, I’m fairly sure that no one would be reporting on the case because it so obviously falls within the scope of fair use.

Fair use generally relies on a weighing of four statutory factors: 1) the purpose and character of the use, including whether the use is of a commercial nature; 2) the nature of the work; 3) the amount and substantiality of the portion used in relation to the whole; and 4) the effect of the use upon the potential market for the work. Over the years, fair use jurisprudence has evolved, and one of the more significant questions considered by courts today is whether the use is transformative. In effect, asking about the transformativeness of the work condenses the first and fourth factors: does the use “transform” the material from the original for a different purpose?

Here, Rothman’s use—to demonstrate a pattern of behavior to show that what she claimed happened actually did, in fact, happen—is clearly transformative, and every single statutory factor should actually favor her use. Rothman’s use was non-commercial and used simply to prove facts in her tort claims against Dr. Phil—a completely different purpose from the original purpose in the video’s creation. The “work” in question appears to be nothing more than a running camera, the resulting video which likely has no value to Dr. Phil’s show. Rothman excerpted a mere nine seconds of the video, a tiny clip in relation to the video as a whole. And, perhaps most significantly, her use would have no effect on the market for this particular work. I doubt this nine-second video has any value to Dr. Phil—other than, of course, to weaken Rothman’s claim against him. It is not as if Rothman was excerpting clips for a competing television program or trying to sell off the video.

Judge Gilstrap rejected Ms. Rothman’s fair use claim, finding that she acted in “bad faith” because she made the nine-second copy to help her in her lawsuit. Gilstrap claims that there is no public interest in her actions because the use was done solely for the benefit of her lawsuit and not for the public at large. Of course, one might think that exposing Dr. Phil, a well-known television personality, as an abusive figure and preventing future abuse of his employees could be deemed to be in the public interest. Not to mention the fact that copyright—the purpose of which is to promote the progress of science—has nothing to do with this case.

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Using a portion of a copyrighted work for evidentiary purposes in a judicial proceeding is a fair use, and Rothman cited several circuit court cases to support this position. Judge Gilstrap acknowledges these cases, as well as the fact that Congress listed “reproduction of a work in legislative or judicial proceedings” as an example of fair use. Such a purpose transforms the original work for a different use and has no bearing on the original market for unaired portions of the Dr. Phil show. Even if one could come up with some scenario where a nine-second clip of a much longer piece of footage would have an effect on the original market, one can assume that this nine-second clip showed Dr. Phil in an unflattering light and Dr. Phil wouldn’t be likely to try to air or sell it.

However, instead of acknowledging how different the use of a video clip—originally taped for potential airing on a television show—is for the evidentiary purposes used by Rothman, Judge Gilstrap focuses on the fact that Rothman uses the “entire” nine-second clip. He notes that Rothman uses the whole work that was registered, but ignores that the fact that the nine-second clip itself wasn’t an entire work but already an excerpt of a much larger work. Dr. Phil’s registration of the nine-second clip—and just that nine-second clip after litigation had been initiated—reveals the true intent of his copyright infringement claim: to silence Rothman and prevent her from providing evidence of his behavior. Additionally, Judge Gilstrap fails to sufficiently recognize that numerous courts have found that even the using of an entire work does not bar a finding in favor of fair use.

The judge in this case got it wrong on fair use, plain and simple. Dr. Phil’s sole purpose here was to silence criticism—a statutorily recognized purpose—and prevent Ms. Rothman from using the clip as evidence against him in litigation—a judicially recognized purpose of fair use. If there was ever a poster child for copyright misuse, where copyright is used to advance non-copyright objectives, here it is. It’s a shame that Judge Gilstrap didn’t see Dr. Phil’s copyright registration for what it is: a sham to protect himself against claims of emotional distress and false imprisonment that does nothing to further the goals of the copyright system.


Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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