Interactive Jury: You Are The Jury - Case: Dr. Phil Show Sues Blogger For Copyright Infringement
Dr. Phil Show vs Deadspin, The Blogger
Dr. Phil Show vs The Blogger
Welcome back to another Interactive Jury article about copyright infringement, this time featuring the Dr. Phil Show and Deadspin sports blog. This case is very short and has already been settled out of court with undisclosed details.
It is brought to you in the interest of research and learning, and to introduce you into a world of the ridiculous when it comes to entertainment, what constitutes entertainment, and the lengths that each party will go to in order to get, or in this case, steal viewers.
Yes, that's right. This case is about stealing viewers, stealing videotape, and stealing thunder.
More importantly, this case is about fair use. A question will be asked of you for your opinion at the end of this article.
The lawsuit, filed in Texas, is in regard to the Dr. Phil Show who had an exclusive interview with Ronaiah Tuiasosopo, a Notre Dame football player, regarding an elaborate hoax he played on Manti Te'o, also a Notre Dame football player. Besides being a shame to do this to someone, I can't believe talk shows think that this is entertainment.
Background on the hoax
Manti Te'o is a football linebacker for Notre Dame. He is a victim of an online hoax involving a fake girlfriend named Lennay Kekua that he met on the Internet and fell in love with. Months into the hoax, she supposedly got leukemia, got into a car accident, ended up in a coma and then died.
Manti Te'o appeared on the Katie Couric show January 24, 2013 talking about the grief of his grandmother and his girlfriend dying on the same day.
But the girlfriend really didn't die because she wasn't even real, despite all the photographs that were sent to Manti Te'o on Facebook and Twitter. The pictures were of a woman, who was real, named Diane O'Meara who contacted the Today show when they showed her photographs and excerpt of Katie Couric's interview with Manti Te'o.
She appeared on the Today show to say her Facebook pictures were stolen and that she didn't even know Te'o.
By the end of her appearance on the Today show, the media picked up her story and that's when Te'o realized a terrible trick had been played on him. I read where he lost out on being considered for the Heisman Trophy and a lot of money from being bumped down from a top choice NFL draft pick due to the media coverage.
The next day, Te'o learned just who had orchestrated the hoax. Ronaiah Tuiasosopo, another football player, who is highly animated and once auditioned for The Voice, had his lawyer contact Te'o to tell him he was the one behind the hoax and that he was sorry.
ESPN got the scoop that Tuiasosopo had pulled off the hoax, ESPN was going to scoop it on their sports channels but Deadspin swooped in and put it on their sports blog as an exclusive. ESPN let it slide and didn't go after Deadspin for stealing their thunder.
Deadspin had broke the initial story in early January on their blog and felt entitled to take any subsequent stories from any outlet who followed up on it. This was in court documents.
After the Katie Couric show got Manti Te'o as an exclusive, everyone gathered round to try to get Tuiasosopo to exclusively appear on their show to give his side of the hoax. Oprah, Katie. Ellen and Dr. Phil vied for the interview and Dr. Phil won.
No amount of money was mentioned in securing the interview. The Dr. Phil Show had high rating and viewer expectations for the show when it aired.
Dr. Phil Show Stolen Interview
Deadspin is charged with copying the juiciest parts of the first exclusive Thursday January 31, 2013 episode of the Dr. Phil Show interview with Ronaiah Tuiasosopo, who had played a hoax on Manti Te'o by creating a fictitious girlfriend for Te'o and using a unique female voice on the phone to pose as the girlfriend in a long distance phone relationship. and putting that on their blog. Then they took the complete second episode from Friday February 1, 2013 and published it on their blog.
On the first part of the Dr. Phil Show, Tuiasosopo described how the elaborate hoax had worked. At the very end of part one, Dr. Phil tried to coax Tuiasosopo into demonstrating his female voice and the first part of the show ended with a cliffhanger that Tuiasosopo would do the voice in the second part which was to air the next afternoon all over the United States.
The Dr. Phil Show did extensive advertising and built up momentum for viewers to tune in to this exclusive interview.
In the complaint, the Dr. Phil Show charged that Deadspin engaged in a premeditated plan to steal their copyrighted material, which was evident when they posted a message to their blog the night before the airing of the second part of the interview, telling their 573 million visitors/blog readers to "tune in tomorrow morning for the Tuiasosopo interview."
The next morning, they posted the complete video of the second show to their blog at 9:30AM Eastern Time, which was hours before the Dr. Phil Show would air the second show later that afternoon to the majority of its US viewers.
The Dr. Phil Show contends that the second show was expected to exceed the first show ratings of viewers and that it didn't happen because the result of the show's cliffhanger had already been aired on Deadspin. The Dr. Phil Show second show ratings were considerably lower than the first show.
The Dr. Phil Show charges that Deadspin infringed on their copyright, stole and distributed copies of their copyrighted video, basically stole their thunder and the viewers to their exclusive interview by obtaining the video and airing it on their blog.
They asked for a jury trial, statutory damages, cost of the lawsuit, attorney fees and punitive damages high enough to make Deadspin not want to do this again. They also asked for an injunction against Deadspin so that they can't appropriate any parts of the Dr. Phil Show (video or transcripts) in the future to infringe on their copyrights.
The Dr. Phil Show noted that while Deadspin is being charged with copyright infringement, their own website says that they take pride in releasing exclusive stories, that they expect to be paid for copyright content and any infringement will be prosecuted.
Prior copyright infringement charges against Deadspin
This is not Deadspin's first rodeo with copyright infringement. In January 2013, Deadspin was cited for copyright infringement by CBS in this same Tuiasosopo/Manti Te'o matter.
Deadspin published a long article on their sports blog regarding the hoax (scooped from ESPN) and added a video. They embedded a three minute CBS news broadcast from CBS This Morning show. The blog got over four million views of that one article and CBS claimed they lost viewers for CBS This Morning show as judged by ratings and other methods because of the blog post and the embedded video. CBS filed a Cease & Desist notice against Deadspin in mid-January 2013.
Almost one month later, Deadspin finally responded. They posted a shorter clip with a notation on the blog that said "The CBS This Morning video was edited at the request of CBS." It is important to note that the sports blog only applied the remedy after they received a Cease & Desist letter from CBS. It seems to be the way they handle their charges.
Deadspin ignored the Cease & Desist letter from the Dr. Phil Show causing them to file the lawsuit. Deadspin continued to ignore the lawsuit and did not respond to the charge.
The Dr. Phil Show asked the court for a default judgment against Deadspin. The court agreed, ordered it and that is when Deadspin decided to respond.
Deadspin said the only reason they aired the show was because they wanted the audience to determine if Tuiasosopo's voice on the show was really the same female voice from the telephone logs that had been aired in the first part of the show.
Deadspin is claiming fair use saying the content they aired were facts and that they were simply reporting the news on an exclusive story belonging to them in the first place which they say they broke back in mid-January 2013 (when they took the story from ESPN). Deadspin is claiming fair use.
The Dr. Phil Show countered that just because "you were first to break the story doesn't mean you can steal everyone's works on that subject."
After several weeks of argument, the two parties agreed to a mediator.
Court assigns mediator
On February 27, 2014, T. John Ward, former district judge in the Eastern District of Texas, was assigned as a mediator in this case.
The two parties resolved their differences with an undisclosed settlement. Deadspin finally removed the infringing Dr. Phil Show materials from their blog on March 3, 2014.
Could this lawsuit have set a precedent in misappropriating content and putting it on a blog?
You can read the full complaint initially filed by the Dr. Phil Show here. There are no other transcripts because they never went inside a courtroom. The mediation was private and neither side gave any interviews to hint at the settlement.
Without any settlement, we will never know if the jury would have said that posting TV shows online (in whole or in part) when not all the time zones have seen the television broadcast, whether this is covered or not by the fair use exceptions to copyright law.
The four steps of fair use are: the purpose and character of use, the nature of the copyrighted work, the amount used and the effect of the use on the potential market.
So what is your opinion? Putting aside the way Deadspin used the Dr. Phil Show interview video, because we can all probably agree that it was wrong, should posting TV shows online when all time zones haven't seen the TV broadcast yet, be considered fair use? Will this pass the four step rule?
Do Not Copy
© Rachael O'Halloran, May 27, 2014
© 2014 Rachael O'Halloran