IP Law Daily, COPYRIGHT—D. D.C.: Bad boys? Lawsuit against The Daily Caller over police videos can move forward, (Aug 15, 2024)
By Matthew Hersh, J.D.
A company that took public-record police videos and wove them together to tell a story created protectible content.
An online investigative journalism organization can go forward with its allegation that a leading conservative media company infringed its copyrights by copying portions of its videos and posted them to its social media pages, the federal court for Washington, D.C., has ruled. The court, in rejecting the conservative media company’s motion to dismiss, also found that there were sufficient allegations that the underlying videos were protectible by copyright, that they were validly registered, and that copyright management information was removed from them in violation of the DMCA (Real World Media LLC v. Daily Caller, Inc., No. 1:23-cv-01654-JDB (D.D.C. Aug. 14, 2024)).
The parties to the dispute are Real World Media and The Daily Caller. Real World Media operates two YouTube channels, Real World Police and What You Haven’t Seen. It describes itself in the complaint as an investigative journalism organization that produces “original video news stories covering law enforcement and crime, and transportation safety.” The Daily Caller is a conservative media company founded by Tucker Carlson and Neil Patel that operates a website, a YouTube page, and other social media.
Real World Media came to believe that The Daily Caller copied portions of at least 14 of its copyrighted videos without authorization and posted them on its YouTube channel and Facebook Page. It sued the conservative media organization for copyright infringement as well as violations of the Digital Millennium Copyright Act, or DMCA. The Daily Caller moved to dismiss the complaint, leading to this opinion.
Validity of copyright registration. The court first refused to invalidate Real World Media’s copyright registrations for the works at issue. The Daily Caller argued that Real World Media misrepresented to the Copyright Office that its works were unpublished and that the works were protectible as compilations of underlying public-record videos. But even assuming that the applications were indeed inaccurate, the court found, The Daily Caller had not shown that Real World Media submitted them with actual knowledge of the inaccuracies. The Daily Caller sought to establish knowledge through circumstantial evidence in the form of copyright application guidance and reference materials. But it was way too premature to weigh the evidence at this point, the court found—especially when there had been “no meaningful factual development or inquiry” into the media company’s state of mind. The motion to dismiss would fail on this ground.
Validity of copyrights. There was also no basis to conclude that the copyrights were themselves invalid, the court found. To be sure, the court noted, the videos were largely made up of police videos that were obtained as public records. But the media company’s videos “do more than simply crop a single public-record video down to show the newsworthy event,” the court noted. “Rather,” the media company “generally obtains multiple different videos of the same event and then edits these videos together to tell a story.” That was enough, at least at this stage of the case, to find the videos protectible.
Substantial similarity. The court also found that Real World Media adequately pleaded that the videos posted by The Daily Caller were substantially similar to the original copyrighted works. There was direct evidence of copying, the court noted, based on allegations that The Daily Caller uploaded videos still containing the original watermark. And the complaint adequately alleged that the copying was of protectible material because The Daily Caller allegedly made “exact copies of portions of these videos (including the video cuts and other creative decisions).” The motion to dismiss would be denied on this ground as well.
DMCA claims. The court also refused to dismiss the claims under the DMCA. These claims alleged that The Daily Caller removed copyright management information—in this case, watermarks from certain of the original videos—when it uploaded them to its social media sites. The Daily Caller argued, in its dismissal motion, that it lacked the mental state required under the DMCA and that the videos it uploaded were not identical to the originals. Neither argument would succeed.
The Daily Caller’s scienter arguments missed the mark for a number of reasons, the court found. First, The Daily Caller argued that it could not have had the requisite scienter because it did not commit copyright infringement—but the earlier part of the court’s opinion had already found that infringement was adequately pleaded. The Daily Caller also noted that it challenged Real World Media’s YouTube takedown notices, suggesting that this reflected “an innocent mind and a lack of knowledge that any removal or alteration of CMI had the requisite link to infringement.” But even accepting The Daily Caller’s “questionable premise,” the court noted, this “sole consideration” did not displace the weight of other well-pleaded allegations of knowledge. The Daily Caller also argued that it “retained Plaintiff’s watermark” in each of the allegedly infringing videos, such that there was no removal of CMI. But the complaint alleged that the watermark was removed “in at least some instances,” the court noted—adequate to make out a scienter claim at this stage of the case.
Nor did it matter, the court found, that the videos uploaded by The Daily Caller were not precisely the same as the originals. The court noted that there was “a nascent district-court split” on this issue, with some courts holding that no DMCA violation exists where an allegedly infringing work is merely a derivative work or one that “recreates aspects of the original work’s protected expression,” and other courts holding that a DMCA claim “may lie under such circumstances.” (IP Law Daily covered a case reaching the former view just a few days ago). But this argument was “a bit of a red herring here,” the court noted, because The Daily Caller was not accused of making a derivative of the original works—rather, it was being accused of uploading “an exact copy of portions” of the originals. “It would be odd if a defendant could evade DMCA liability by removing or altering CMI in a copied work but only disseminating 99% rather than 100% of that work,” the court reasoned.
Motion to refer. Finally, the court found that it was premature to consider whether to refer Real World Video’s copyright registrations to the Register of Copyrights. This motion also arose out of The Daily Caller’s assertion that the Real World Daily falsely told the Copyright Office that its works were not previously published and that the works were not compilations. Under the Copyright Act, “[i]n any case in which inaccurate information described under paragraph (1) is alleged, the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.” The Daily Caller argued that since it had alleged the registrations were inaccurate, referral was immediately required. But “[t]o read the statute to require immediate referral on any allegation would be to open the door to significant abuse in the form of defendants’ use of the referral provision as a delay tactic at the outset of proceedings,” the court reasoned. A referral, if at all, would have to come later in the case.
The Case is No. 1:23-cv-01654-JDB.
Judge: Bates, J.
Attorneys: Kevin Vick, Jean-Paul Jassy, and Jordyn Ostroff (Jassy Vick Carolan LLP) and Danielle D. Giroux (Harman Claytor Corrigan & Wellman PC) for Real World Media LLC. J. Kevin Fee (DLA Piper LLP) for Daily Caller, Inc.
Companies: Real World Media LLC; Daily Caller, Inc.
Cases: Copyright TechnologyInternet DistrictofColumbiaNews GCNNews