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Online Copyright Infringement Question: Can You Blog About Something Before It Airs In Your Time Zone?

Posted on 24 May, 2013 in Intellectual Property, Internet Law and Intellectual Property by aaronklaw

copyright-lawyerFor the most part, the Manti Te’O girlfriend scandal is long-forgotten fodder. But Dr. Phil McGraw’s people don’t want to let the scandal slide. The pop-psychology pioneer is suing Gawker Media for allegedly spoiling his two-part interview with Ronaiah Tuiasosopo – the mastermind behind the Te’O prank. To clarify, Dr. Phil, the man, is not suing Gawker; instead, Peteski Productions, the company that owns the Dr. Phil Show’s copyrights, is the plaintiff in this high-profile online copyright infringement case.

Specifically, the plaintiffs are arguing Gawker posted the outcome of a “cliffhanger” interview before the show aired in most markets. At first glance, this case seems straightforward: Dr. Phil’s team worked to produce a high quality interview; they also maintained the infrastructure needed to  distribute the finished product; then Gawker came along and posted the outcome of the interview before Dr. Phil aired in most regions; as a result, the ratings for the show plummeted, causing financial loss for the program.

Game,  set, match Dr. Phil, right? Not so fast.

Here’s the thing: It’s 2013. Besides a few minor disappointments in hover craft and replicator technology, we’re basically living la vida Jetson. We can video chat with people on the other side of the globe in real time, robots named Roomba handle the vacuuming, heck, even Marty McFly’s shoes headlined an auction last year!

All this technological advancement has helped create a new communication and media model – one that involves the entire globe; people are no longer tethered to their 7:00 p.m. nightly news. Now, once something airs in another continent, it’s usually hitting the Web within minutes. Our new media model is why NBC caught so much flack for their 2012 Olympic coverage – by the time the prime time viewing came around, viewers were spoiled. Should the US-based blogs, which reported the standings before NBC aired the footage, be sued for copyright infringement?

Let’s consider this instant communication model as it relates to the Dr. Phil v. Deadspin lawsuit. Since Dr. Phil’s interview seems to have aired in at least one overseas market before it found its way online, should Deadspin be held liable for intellectual property infringement? Moreover, since Deadspin was the media outlet that originally broke the Manti Te’o story, should they have free reign to report on aspects of the story as soon as they get it?

The Facts Of The Case

On January 31, the Dr. Phil show featured the first part of an interview with notorious trickster, Ronaiah Tuiasosopo – the mastermind behind the Manti Te’O hoax. At the end of the episode, Dr. Phil urged Ronaiah to demonstrate the female voice used to trick his friend. At first, Ronaiah declined. At the end of the episode, however, the cliffhanger teaser was “would Ron perform his voice on the second part of the interview,” which would be airing the following day. The next day, the second half of the interview aired in its first market – a market  presumably outside of the United States. It is likely that at that point, Deadspin posted the “cliffhanger clip” on their website. As the plaintiff explained in the complaint: “[Deadspin posted the story] no later than 9:30 a.m. Eastern Standard Time, hours before the Dr. Phil show aired over 98% of its viewers.”

The 98% figure is what’s interesting.

Peteski Productions, on behalf of the Dr. Phil Show, also allege Deadspin’s post negatively affected ratings for the second half of the interview. Attorneys for the plaintiffs explained, “Gawker received substantial benefits from its infringement, but Peteski received nothing…Gawker deliberately set out to get ‘the jump’ on the rest of the country and ‘scoop’ Dr. Phil with his own content. They did not earn that right, they stole it. They did not conduct the interview, they stole it.” Lawyers for the plaintiffs also allege that Deadspin posted the material as part of a “premeditated plan to steal Peteski’s copyright.”

The Question Of ‘Exclusivity’ In The Content is King Internet Age

On its face, and from a purely theoretical standpoint, this online intellectual property case seems straightforward. But it’s not, because Timothy Burke and Jack Dickey of Deadspin were the first to break the Manti Te’o scandal story. In fact, Dr. Phil may never have known about the hoax if Deadspin wasn’t on the case.

In some ways, you could argue (again, from a purely theoretical standpoint) that Dr. Phil tried to profit off the work of Gawker Media. When interviewed about the situation, Gawker editor, A.J. Davlerio called the material “exclusive.” In explaining what he meant by “exclusive,” Davlerio said stories that are “generated here and only here despite our dubious reputation as content remoras.”

At first listen, Davlerio’s statement sounds out-of-touch. When you think about it, though, in our Internet Age, all media outlets are co-dependent. Tenacious bloggers are often the ones to break stories, which are  vetted and claimed by big box media. After that, talk show hosts, like Dr. Phil, deconstruct the most salacious – and often most entertaining — aspects. With a media ecosystem like this, who  is the “owner” of perceived copyrights these days?

Dr. Phil v. Gawker raises a 21st century online copyright law question: Are bloggers and smaller online media outlets at the legal mercy of big-money media – even when the online outlets “break” a story? Much less, should “big-box” media be allowed to cry foul when online journalists – who regularly track the world-stage in real time – report on stories the moment they become public – anywhere in the world. And in this instance, is it fair to say that Gawker really “scooped” the Dr. Phil Show? After all, even the lawyers for Dr. Phil indirectly said 2% of Dr. Phil viewers got to see the interview before Deadspin posted the outcome.

The way the lawsuit is worded, it sounds like the Dr. Phil show in question aired somewhere before it was on Deadspin. After all, they specifically used “98%” in the claim – not 100%.  So, let’s pretend a cable station in the UK carries the Doctor Phil show and it airs at 2:00pm Greenwich Mean Time, which is 9:00 a.m. eastern standard time. Should a US-based website be able to argue that all is fair in the content wars once any type of news breaks anywhere in the world?

It’s a murky theoretical line. What do you think? Have your say below.