Producers Tommy Phipps and Wendy Wheaton are suing PBS and Crystal Travis, the owner of a surrogacy firm, for a story that was featured on To the Contrary, alleging copyright infringement. Back in 2013, the show, which is hosted by Bonnie Erbe and an all-female panel that provides in-depth analyses of national and international news, did a segment on international surrogacy, with clips that Phipps and Wheaton claim are theirs and were used without their permission.
According to the complaint, in 2012, Travis hired Phipps and Wheaton, who also works as a publicist, to promote her Maryland-based business World of Surrogacy. The following year, Travis made plans to visit India to “reconnect with her surrogacy contacts,” and she suggested that they go with her and film the visit. Phipps and Wheaton allege that they “proposed that they create a documentary…on the subject of surrogacy.” The three spent a week in India, and Phipps and Wheaton took “hundreds of individual videos and photographs” of their experience talking to people about surrogacy. At the end of the trip, Travis requested a copy of the footage and even bought a hard drive in the airport for the files, which they later sent to her. The producers never made a formal documentary with the footage, but they informed Travis that even though they had given it to her, they were still the copyright holders and that she would need an express license from them to use it.
When the international surrogacy segment aired, the plaintiffs claim that there were seventeen instances where their work was shown without authorization. The footage was even watermarked as coming from World of Surrogacy. “On information and belief,” says the complaint, “Travis provided Wheaton’s and Phipps’ footage to PBS for use in the PBS Video on or before May 10, 2013 and palmed it off as her own.”
The suit describes PBS as “sophisticated publishers of content with full knowledge of the strictures of federal copyright law and the basic requirements for licensing the use of copyrighted content for commercial exploitation, and despite such knowledge, willfully reproduced, publicly distributed, and publicly displayed the Infringing Works.” Wheaton and Phipps are accusing PBS of both vicarious and contributory infringement. Under vicarious infringement, a defendant is liable if: 1) they have the ability to control infringement and 2) they benefit financially from the infringement. Under contributory infringement, liable is found when there is knowledge of infringement, or it is induced or caused. These forms of indirect infringement are what file-sharing site Napster was sued for around the turn of the millennium. The takedown notice procedure, as outlined in the Digital Millennium Copyright Act (DMCA), was put in place to provide “safe harbor” from vicarious and contributory infringement for providers of “online storage” (Google’s YouTube, for instance), as long as they comply with a valid request from copyright owners to remove infringing content.
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One interesting thing to note: Could Travis argue that the footage was a work for hire in their original agreement? Under Section 101 of the Copyright Act, a work made for hire is 1) a work prepared by an employee within the scope of his or her employment or 2) a work specially ordered or commissioned for use [in different types of work], if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. Was creating the footage part of their employment? According to the lawsuit, neither the contract addressed any ownership rights of intellectual property that was created as part of the PR relationship, nor did they give Travis any license to use the footage at any point. Seems unlikely to be work for hire, especially because the documentary was never actually made.
For updates on this suit, please stay tuned to our blog.
