IP Law Daily, COPYRIGHT—W.D. Wash.: The ability to withdraw a ‘carrot’ does not create the ‘stick’ of right to supervise, (May 1, 2023)

By Matthew Hersh, J.D.

A court reiterates a longstanding doctrine of vicarious copyright infringement.

The mere fact that a media company had the right to terminate a contractual relationship with a radio host did not make it vicariously liable for the radio host’s alleged copyright infringement, the federal court for Seattle has held. The court, in dismissing for a second time a widower’s claim against the media company for the alleged conduct of the host, emphasized that the contractual relationship alone did not give the media company the right and ability to control the host’s conduct (Al-Bustani v. Alger, April 27, 2023, Robart, J.).

The lawsuit involves a somewhat complex web between an author, a widower, a radio host, and a media company. Tracy Twyman was, before her death, an author who specialized in what Amazon labels “esoteric history.” Hareth Bustani, the plaintiff in this case, is the author’s widower and the holder of her intellectual property rights. Clyde Lewis, a self-described “powerful voice in parapolitical and paranormal news and commentary,” hosts the radio show Ground Zero. Finally, Gen Media, through a subsidiary, markets and licenses the Ground Zero show to radio stations.

The widower originally brought several claims against the media company. One of the claims alleged false light invasion. According to the allegations in the complaint, the Ground Zero host and a guest speculated that the author had not died by suicide, as was commonly believed, but had rather been murdered by her husband. In a February 2023 ruling, the court dismissed this claim as time-barred. The court also dismissed a claim under the Washington Personality Rights Act under the statute’s public interest exception.

Another allegation in the complaint involved a claim of copyright infringement. According to the original complaint, the radio host committed copyright infringement by discussing the late author’s work on the show. The lawsuit contended that the media company was vicariously liable for the radio host’s conduct because of its relationship with the host. The February ruling dismissed this vicarious infringement claim for the simple reason that, in its view, there was no underlying infringement claim. That was because, the court found, the mere discussion of the late author’s works on the air did not infringe any of her exclusive rights.

But the widower was not deterred. Instead, he came back with a new claim, namely that the radio host posted PDF copies of some of the author’s works on a subscription website that he maintained. Perhaps surprisingly, the lawsuit did not contend that the media company owned or controlled the website itself. Rather, the lawsuit contended, the media company had a contractual relationship with the radio show—a venture that allegedly profited, the lawsuit contended, as the website drew listeners to the show.

The media company moved to dismiss the complaint, leading to this opinion.

Vicarious liability. The court made quick work of this amended complaint. Vicarious infringement occurs, the court explained, when one profits from direct infringement while declining to exercise a right to stop or limit the directly infringing activity. More specifically, the court noted, once a plaintiff has established direct infringement, he must plausibly allege that the defendant has (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity. Even assuming that the widower had this time stated a direct claim of infringement against the radio host, the court noted, the vicarious infringement still failed.

The vicarious infringement claim failed, the court explained, because there was simply no adequate allegation that the media company had the practical ability to stop the radio host from the alleged infringement. The media company did not run the radio show or have any direct way to control his conduct, the court noted—all that could do, under the facts pleaded by the widower, was to terminate its separate contract with him for the website. But the bare right to terminate an agreement, without more, the court noted, constituted only “the mere ability to withdraw a financial carrot” rather than “the stick of right and ability to control” that vicarious infringement requires. Thus, the complaint once again failed.

The Case is No. C22-5238JLR.

Attorneys: Susan L. Ford (Res Nova Law) for Al-Hareth Al-Bustani. Thomas W. Hayton (Cutler Nylander & Hayton, PS) for Sean B. Alger and SB Alger Studio Productions LLC. Sloan Bella, pro se.

Companies: SB Alger Studio Productions LLC

Cases: Copyright TechnologyInternet WashingtonNews