Slate v. Am. Broad. Cos., Inc.

• Decision Date: 23 April 2013
• Docket Number: Civil Action No. 09–1761 (BAH).
• Parties: Gregory SLATE, Plaintiff, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

941 F.Supp.2d 27

Gregory SLATE, Plaintiff,

v.AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.

Civil Action No. 09–1761 (BAH).

United States District Court,

District of Columbia.

April 23, 2013.

Gregory Slate, Washington, DC, pro se.

Chad R. Bowman, Nathan E. Siegel, Levine Sullivan Koch & Schulz, LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

The plaintiff Gregory Slate brings this copyright infringement action against the defendants ABC News, Inc., ABC News Interactive, Inc., and Disney/ABC International Television, Inc. (collectively, “ABC” or “ABC News”), seeking relief for what he claims was the willful and unauthorized use of less than one minute of video footage. The plaintiff filmed the footage at issue as a part of a hidden-camera investigation in Chicago in the fall of 2007 (“the Chicago footage”)—a project that the plaintiff worked on with employees of the defendants and the Police Complaint Center (“the PCC”). The defendants had agreed with the PCC to produce the hidden-camera footage and believed that the plaintiff was an agent of the PCC. The plaintiff now claims that he owned the copyright to the Chicago footage all along, and he seeks to hold the defendants liable for direct and contributory copyright infringement because they have since used the footage in on-air broadcasts and distributed the same on the Internet and other media. The defendants have filed a motion for summary judgment on the merits of the plaintiff's claims and a motion to dismiss for bad-faith litigation conduct.¹

I. BACKGROUND

Serious accusations about the handling of evidence have been lodged by each side against the other in this acrimonious litigation, and this has made more complicated—and more time consuming for the Court—the task of reciting the facts. For example, the plaintiff challenges the authenticity and validity of a number of pieces of evidence submitted by the defendants. See, e.g., Pl.'s Statement of Genuine Issues in Dispute (“Pl.'s Facts”) ¶¶ 4, 23–25, 27–28, 30, 44, 76–80, ECF No. 95–1. Meanwhile, the defendants accuse the plaintiff of fabricating evidence to manufacture a genuine dispute of material fact. See generally Mem. in Supp. of Defs.' Mot. to Dismiss for Bad–Faith Conduct of Litigation (“Defs.' Bad–Faith Mem.”), ECF No. 94–1.

This is a dispute between Gregory Slate and ABC News, but a third party who plays a key role in this dispute is Diop Kamau. Kamau is a principal of the PCC, which has been a nonprofit organization incorporated in Alabama since October 2002.²See, e.g., Defs.' Statement of Material Facts Not in Genuine Dispute (“Defs.' Facts”) ¶ 2, ECF No. 93–1; Reply Decl. of Nathan Siegel (“Fourth Siegel Decl.”) (Oct. 17, 2011) Ex. SR–3, ECF No. 97–12. ³One of the directors of the PCC, as listed on its Articles of Incorporation, is the plaintiff. See Fourth Siegel Decl. Ex. SR–3, at 3. As discussed below, Kamau and the plaintiff collaborated on at least two projects, both of which involved surreptitiously videotaping interactions with police officers and providing that footage to news organizations, which in turn used the footage to report on the officers' conduct. Less than a minute of such footage is the subject of the instant copyright infringement action.

A. 2006 Cincinnati Project

In June 2006, ABC News, the PCC, and a local ABC affiliate in Cincinnati called WCPO “undertook to do a news investigation to test responses of local police precincts in the vicinity of Cincinnati to a person seeking to file a complaint.” See Defs.' Facts ¶ 10. Working on this project were: the plaintiff, one other PCC “tester” named Edwin Pierre, an ABC News producer named Michael Mendelsohn, and a journalist from WCPO named Phil Drechsler. See id. ¶ 14; Decl. of Michael Mendelsohn (“Mendelsohn Decl.”) ¶ 3, ECF No. 93–6; Decl. of Philip Drechsler (“Drechsler Decl.”) ¶ 3, ECF No. 93–3. A producer from ABC News named Glenn Silber negotiated with Kamau regarding the terms of ABC's arrangement with the PCC. See Defs.' Facts ¶ 11. Under the terms of that agreement, ABC News paid the PCC a fee of $3,000 for its work, in addition to expenses such as airfare and hotel accommodations, and in return ABC News “owned any resulting video and was free to use it as it wished, including permitting any use by WCPO.” See Decl. of Glenn Silber (“Silber Decl.”) ¶ 4, ECF No. 93–5.⁴ Ultimately, ABC paid the PCC the $3,000 fee and expenses totaling approximately $2,300, which is evidenced by two sworn declarations and documentary evidence. See, e.g., id.; Decl. of Vivian Cappuccio (“Cappuccio Decl.”) ¶¶ 2–3, ECF No. 93–17; see also Cappuccio Decl. Exs. C1–C2, ECF No. 93–18.

The plaintiff participated in this Cincinnati-based project as a “tester,” which apparently involved surreptitiously recording interactions with police. According to Mendelsohn and Drechsler, the plaintiff at all times held himself out as an agent of the PCC. See Defs.' Facts ¶ 15; Drechsler Decl. ¶ 3; Mendelsohn Decl. ¶¶ 3, 11. The plaintiff, however, maintains that “[a]t all times in Cincinnati, [he] was working as an independent freelance journalist and expressly held [himself] out as such to Mendelsohn and Drechsler.” See Decl. of Gregory Slate (“Slate Decl.”) ¶ 32, ECF No. 95–2. WCPO ultimately aired a news report on July 9, 2006 based on the “testing” that the plaintiff conducted in the Cincinnati area. See Defs.' Facts ¶ 16. That story prominently featured the plaintiff, showing him being interviewed on camera in a number of different locations. See Drechsler Decl. Ex. 1, ECF No. 93–3 (video of WCPO broadcast). The report also opened by introducing the plaintiff as “the director of the Police Complaint Center in Washington, D.C.” Id. Drechsler says that the introduction was based upon “information that Mr. Slate provided to WCPO.” See Drechsler Decl. ¶ 4.

In an e-mail dated August 2, 2006—about three weeks after the WCPO story aired—the plaintiff asked Mendelsohn “Did you get a chance to see the piece that WCPO did? It was pretty good.” See Mendelsohn Decl. Ex. M6, ECF No. 93–7. The e-mail also stated “I mailed you the receipts from that trip. I wanted to make sure that you got them.” Id. The plaintiff, however, maintains that he “never sent Mendelsohn receipts.” See Slate Decl. ¶ 35. The plaintiff also maintains that he sent Mendelsohn a letter almost three weeks later on “August 21, 2006.” See id. ¶ 36. The plaintiff has submitted what he avers is a copy of this letter, which states that he “was confused when WCOP [sic] proceeded to produce a story with [his] footage” because it was his “understanding ... that ABC and its affiliates were not interested in [his] footage and [he] accepted [Mendelsohn's] reimbursement proposal because [he] believed that [his] footage would retain its exclusivity and value.” See Decl. of Chad R. Bowman (“First Bowman Decl.”) (Mar. 9, 2011) Ex. 10, at 2, ECF No. 39–12. The letter goes on to “make a few things clear,” including (1) “[a]lthough I know Mr. Kamau, I am not his employee and I have recently developed concerns about being publicly associated with him and his organization;” (2) “I am an independent freelance journalist” and so “ABC News and I should craft an explicit licensing agreement, ratified by both of us, before my footage is broadcasted;” and (3) “In terms of compensation, I do not work for free or for expenses only” because “my recent success, including receiving an Emmy Award for Investigative Journalism, have [sic] substantially elevated the value of my work.” See id. at 2–3.

A substantial amount of evidence in the record undercuts the authenticity of this letter. The Court will only discuss the two most glaring examples.⁵ First, Mendelsohn avers that he “never received the letter” and “saw it for the first time in 2010 after it was provided by Mr. Slate's counsel in this lawsuit.” Mendelsohn Decl. ¶ 11. In fact, Mendelsohn avers that “Mr. Slate did not pitch stories to me, nor did he ever assert to me that he had any personal rights to, or expectation of payment for, any video filmed during the Cincinnati project or any other project.” Id. Second, the sworn testimony of Rebekah Cowing, the Executive Director of the Chicago/Midwest Chapter of the National Academy of Television Arts and Sciences, Inc., sheds light on the “August 21, 2006” letter's conspicuous reference to the plaintiff “receiving an Emmy Award for Investigative Journalism.” See First Bowman Decl. Ex. 10, at 3. The letter references a local, Chicago-area Emmy award for a story aired by FOX's Milwaukee affiliate WITI, see Dep. of Gregory Slate (“Slate Dep.”) at 172:8–10, ECF No. 37–2, and the defendants do not dispute that the plaintiff won that award. Cowing testified, however, that the nominees for those awards were not announced until September 26, 2006—over a month after the plaintiff purportedly sent the letter to Mendelsohn—and the winners were not announced until November 19, 2006—about three months after the purported date of the letter. See Dep. of Rebekah Cowing (“Cowing Dep.”) (June 6, 2011) at 15:7–15, 21:7–12, ECF No. 93–27. Furthermore, when the nominees were announced on September 26, 2006, the plaintiff's name was not among them because his name was not added to the WITI submission until December 11, 2006—nearly four months after the letter was allegedly written and sent. See id. at 90:23–91:10; see also Decl. of Nathan Siegel (“Third Siegel Decl.”) (Sept. 1, 2011) Ex. S14, ECF No. 93–27 (December 11, 2006 e-mail from WITI reporter requesting to add the plaintiff's name “to the winning entry” and referring to the plaintiff as a “co-founder of the ‘Police Complaint Center’ in Washington DC”).⁶ The Court will return to these discrepancies when considering the defendants' motion to dismiss.

B. 2007 Chicago Project

After the project in Cincinnati, Kamau wrote an e-mail to ABC News producer Glenn Ruppel on April 3, 2007, proposing a new project. See Third Siegel...