IP Law Daily, COPYRIGHT—S.D.N.Y.: Case brought by former interviewee on Fox News dismissed, (Sep 9, 2022)

By Donielle Tigay Stutland, J.D.

The court dismissed claims that Fox News and its employees stole work and tips of a contributor, concluding that federal copyright law preempted some claims and others were insufficiently pleaded.

The federal district court in New York City has adopted the recommendations of a magistrate judge to dismiss state law claims brought against Fox News and various related entities by a medical doctor who was a former contributor to the news channel on the ground that the claims were preempted by the Copyright Act or inadequately pleaded. Steven Greer brought claims against a large group of defendants including Fox News and the Wall Street Journal alleging claims including defamation, hot news misappropriation, and tortious interference with contract. The magistrate judge recommended all claims be dismissed with leave to amend. The district court agreed with the report; however, dismissed all claims with prejudice (Greer v. Fox Corp., September 7, 2022, Swain, L.).

Background. Steven Greer is a physician who had contributed to Fox News by appearing as a guest speaker and by providing tips to Fox News reporters from 2008 through 2013. The business relationship deteriorated and the doctor alleged that he was “blacklisted” by the defendants, which include Fox Corporation, Fox News Media, Fox News Network, LLC, Lachlan Murdoch, Suzanne Scott, Justin Wells, Charles Gasparino, Fox Business Network, Brian Jones; as well as News Corporation, Dow Jones, the Wall Street Journal, and Gerard Baker. Greer also alleged that he and Gasparino exchanged various emails over his reporting in 2020.

Greer filed his suit on July 14, 2020, asserting a federal copyright infringement claim and six state law claims, arguing that he was “the victim of copyright infringement, unfair competition, and misappropriation of 'hot news,' as the news channel and newspaper allegedly used Greer’s original and unique writings for their own television show content, without permission and without giving recognition to Greer as the ‘originator.’” Greer filed an amended complaint that dropped the copyright infringement claim. The defendants moved to dismiss the remaining state law claims.

On June 3, 2021, Magistrate Judge Aaron filed a Report recommending that the defendants’ motions to dismiss be granted, but that Greer be given another opportunity to amend his complaint. Greer asserted that the Report erred in its analysis of: (1) the copyright preemption issues; (2) the defamation claims; and (3) the tortious interference claims. The defendants asserted that the Report was correct to recommend dismissal of all claims, but argued that the claims should be dismissed with prejudice.

Copyright preemption. The court first reviewed the recommendation to dismiss the state law claims as preempted under the Copyright Act because they sought to sought to vindicate legal rights that are “equivalent to the exclusive rights protected by copyright law.” The pro se plaintiff had objected to the Magistrate’s analysis that his four state law claims (which included claims for unfair competition, unjust enrichment, misappropriation of hot news, and a claim under the California Business and Professions Code) were preempted by federal copyright law.

The plaintiff objected to the Report by arguing: (1) he did not possess a copyright registration; (2) mere ideas are not copyrightable; (3) an implied-in-fact contract existed between him and Fox.

The court rejected the plaintiff’s argument that the doctrine of copyright preemption would not apply to any of his claims because “he does not possess a copyright registration.” The court found this argument unfounded, as “[t]he scope of copyright for preemption purposes . . . extends beyond the scope of available copyright protection.” “[I]n other words, for preemption purposes it does not matter whether or not Plaintiff held an official copyright registration of the works in question,” said the court. Similarly, the court rejected the plaintiff’s argument that he only alleged the theft of ideas (as opposed to written materials), because a person cannot copyright mere ideas for similar reasons.

With regard to any argument that he had an implied in-fact contract with Fox News that might not be preempted by federal copyright law, the court noted that the plaintiff had not raised this argument in his complaint, and as such he had waived it.

Defamation. The defamation claims related to several sets of activities: (1) a 2013 news desk incident (in which the plaintiff was refused access to the Fox building by security desk employees); (2) the 2020 Gasparino emails (in which Gasparino asked the plaintiff “what’s the weather like in Russia . . . comrade,” asked the plaintiff whether he had been banned from the Fox building for stalking, and stated that he was “sending [Plaintiff’s’] email to the FBI”); (3) the 2020 Moser email (in which Moser referred to the plaintiff as “a nut”); and (4) other “less particular” allegations of defamation.

The court agreed with the Report that the defamation claims were not pleaded with the requisite particularity and should be dismissed. The plaintiff raised two main objections, arguing that: (1) he should have been allowed to conduct discovery in order to plead these claims with particularity; and (2) he sufficiently alleged defamatory statements by defendants Gasparino, Moser, and the Fox security desk employees. The defendants asserted that these defamation claims are clearly meritless and should be dismissed with prejudice.

As for the merits of the defamation claims, to allege defamation under New York law, a plaintiff must show: (1) a written defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability. With respect to any actions from 2013, the court noted they would be barred by the statute of limitations. Regarding the emails, the court noted, first, the plaintiff had not alleged any publication and that any of the emails were shown to anyone but their recipients. Additionally, the court found that the language in the emails was simply not actionable, and the statements cannot support a viable defamation claim because “rhetorical hyperbole, vulgar name-calling, and generalized insults are not, without more, actionable under the defamation laws.”

Tortious interference with contract. The court also agreed with the report that the tortious interference claims be dismissed because the plaintiff did not adequately allege elements of the claims. The plaintiff alleged that he held implied-in-fact contracts with WABC Radio, OANN, and Rudy Giuliani (the “contracting entities”) for various novel news media projects, and that the defendants improperly caused the breach of these contracts through their “defamatory blacklisting.”

However, the court agreed with the Report that the plaintiff did not adequately allege key elements of these claims, in particular, knowledge by the defendants. He did not allege any nexus between the parties or any specific conduct between the parties related to his claims. The court dismissed the plaintiff’s tortious interference claims with prejudice.

Intentional Infliction of Emotional Distress. The Report concluded that the plaintiff could not meet the “exceedingly high legal standard” for an IIED claim. The plaintiff argued that the defendants intentionally caused him emotional distress during three incidents: (1) the 2013 Fox security desk incident; (2) the 2020 Gasparino emails; and (3) Fox’s failure to allow the plaintiff’s books “past the mail room security screening process.” Again, the court found the 2013 incident to be time barred. With respect to the other two activities alleged to have caused IIED the court determined that the plaintiff failed to “allege any actions even approaching outrageous conduct,” and the court concluded that claim should be dismissed with prejudice.

The Case is No. 1:20-cv-05484-LTS-SDA.

Attorneys: Steven E. Greer, pro se. Steven Glen Mintz (Mintz & Gold LLP) for Fox Corp.

Companies: Fox Corporation; Fox News Media; Fox News Network, LLC; Fox Business Network; News Corporation; Dow Jones; The Wall Street Journal

Cases: Copyright NewYorkNews