Former employee of TV’s Dr Phil brings a state suit alleging various torts (including infliction of emotional distress). Seeking to document his abusive behavior, the defendant uses her iPhone to copy nine seconds of Dr. Phil archival footage, showing Dr Phil (allegedly) behaving badly in another incident, and seeks to use the clip as evidence.

Dr Phil obtains a copyright registration of the 9 second clip, and sues for infringement. Defendant asserts fair use as a defense.

Plaintiff moves for summary judgment to dismiss fair use defense. Granted.

I think the most startling thing is that the judge could cite a passage from Nimmer stating “. . . it seems inconceivable that any court would hold such reproduction to constitute infringement . . . ” and still hold that this wasn’t fair use.

The court distinguishes cases holding that judicial use is fair use, stating that these cases didn’t consider fact patterns involving ‘copying an entire work in preparing a complaint.’ Here’s the thing: When defendant copied nine seconds from Dr. Phil’s (presumably vast) archives, there was no ‘entire’ nine second work extant.

Quick takes:

The judge’s finding that the work wasn’t sufficiently transformative seems puzzling to me, as the defendant sought to use the clip in a very different manner than that of plaintiff. She sought to use the clip as evidence in a lawsuit to illustrate Dr. Phil’s behavior, and thus she was commenting on the work (sort of). Plaintiff’s presumed original intent in creating this 9 second work was to meld it into a larger work, namely the Dr Phil show.

The second factor going to the nature of the Work. The court places great weight on the fact that the Work is unpublished. The Court cites Harper & Row language that ‘as yet unpublished’ works are to be protected, but the court doesn’t discuss the significance of the ‘as yet’ part of that phrase. This is not Harper & Row, where the defendant allegedly rushed to published excerpts from an unpublished manuscript so as to ‘scoop’ the author. This isn’t a fact pattern either where J.D. Salinger has a secret manuscript and I break into his house and publish excerpts.

The third factor goes to the amount of the work taken. Defendant seems to have conceded this issue. This is because defendant took all nine seconds of plaintiff’s work – except what really happened is that defendant registered all nine seconds of what defendant excerpted from plaintiff’s much larger work. THe court cites a Ninth Circuit case, in which several photographs were copied out of a larger collection of photos, for the proposition that: Each of the individual wedding photos is a separate work[11] because each photo “can live [its] own copyright life” and “has an independent economic value and is, in itself, viable.” Columbia Pictures TV, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1193 (9th Cir.2001).

In theory, a nine second clip of Dr Phil having a tantrum might have an independent economic value (because of the blooper outtake market – not that Dr Phil would actually sell this particular clip to TMZ), and therefore it might have its own copyright life. But with regard to a fair use analysis, a better view for determining ‘amount of work taken,’ might be to look to the author’s intent when the work was created. When Dr Phil’s crew filmed, it was with the intention of melding any footage into some larger work. In that sense, defendant took a miniscule portion of the originally intended work.

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