11
Sep/17

My Favorite Sentence From the Dr. Phil Fair Use Decision


See here for my prior post, including the text of the Dr Phil copyright fair use decision.

Re-cap: defendant was suing TV’s Dr. Phil in state court for torts arising from his allegedly abusive behavior. In order to show that Dr. Phil is someone who shouts, defendant, a former employee, obtained access to archival footage of the show, and recorded nine seconds of video outtakes. Dr Phil then obtains a copyright registration for those nine seconds, and sues for infringement in federal court.

In discussing the four fair use factors, the court notes:

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.

Emphasis added.

Face palm slap here.

Unlike most fair use cases, here the amount used by defendant was determined by the copyright owner, and not the defendant. When the defendant made her copy, she copied nine seconds of presumably hours of archival footage. The ‘entire work’ only became ‘the entire work’ AFTER she copied it, when plaintiff later registered those nine seconds. Has plaintiff created (and registered) any other nine second works? Defendant did not evince an intent to copy an entire work – in fact her intent was to copy only that which she needed to make her commentary on the work. Accordingly, the ‘portion of work taken’ analysis should either favor defendant (as measured against the archives) or be considered neutral, because of the uniqueness of plaintiff’s behavior post-infringement.

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