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Slate v. American Broadcasting Companies, Inc.

United States District Court, District of Columbia

April 23, 2013

GREGORY SLATE, Plaintiff,
v.
AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants

Page 28

GREGORY SLATE, Plaintiff, Pro se, Washington, DC.

For ABC NEWS, INC., DISNEY/ABC INTERNATIONAL TELEVISION, INC., Defendants: Chad R. Bowman, Nathan E Siegel, LEAD ATTORNEYS, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington, DC.

For ABC NEWS/STARWAVE PARTNERS, Defendant: Chad R. Bowman, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington, DC.

OPINION

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MEMORANDUM OPINION

BERYL A. HOWELL, United States 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. [2] See, 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. [3]

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One 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

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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

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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 Decl. Ex. S22, ECF No. 93-28. In that e-mail, Kamau proposed " send[ing] in hidden cameras into bars frequented by [Chicago] police officers to document excessive drinking and inappropriate behavior." See id. at 1. The e-mail further stated that " [o]f course we would supply the investigators if ABC can assist with the costs." Id. From the e-mail exchanges submitted, it is clear that Kamau and Ruppel contemplated a two-part process: First, PCC and its testers would do an " advance scouting" trip in which they would " investigat[e]" at " a few locations where the likelihood of off-duty police presence is greatest." See Decl. of Glenn Ruppel (" Ruppel Decl." ) Ex. R2, at 2, ECF No. 93-9; Third Siegel Decl. Ex. S35, at 1-2, ECF No. 93-29. If the scouting trip produced enough material " to commit to a full story," they would " proceed to the next stage," which would involve a larger-scale operation. See Ruppel Decl. Exs. R2-R3, ECF No. 93-9. Under the terms of this arrangement--negotiated through e-mail exchanges among Ruppel, Kamau, and the plaintiff--PCC was to be paid $2,000 for the first stage and $5,500 for the second stage, in addition to expenses. See, e.g., Third Siegel Decl. Ex. S35, at 1-2. All of the

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plaintiff's e-mail communications regarding planning for the first Chicago trip were sent to and from the e-mail address " gslate@policeabuse.org," which was the domain name associated with the PCC. See, e.g., Third Siegel Decl. Ex. S35-S36, ECF No. 93-29; Ruppel Decl. Exs. R1-R5, ECF No. 93-9. In fact, in one of these e-mails, the plaintiff's signature line reads: " Gregory A. Slate, Director[,] The Police Complaint Center." See Ruppel Decl. Ex. R1.

1. First Chicago Trip

From approximately August 13 to August 22, 2007, the plaintiff and two other persons named Jack Baird and Mark O'Flahavan traveled to Chicago to carry out the first stage of the project. See id. Ex. R3, at 1; see also Cappuccio Decl. Exs. C3-C4, ECF No. 93-18. In connection with this first Chicago trip, ABC News pre-paid the travel expenses of the plaintiff and Baird, including airfare and hotel accommodations. See Cappuccio Decl. ¶ ¶ 4-5. [7] The plaintiff also requested and received from ABC a " small [digital video or DV] cam[era]" for use in the testing project. See Ruppel Decl. Ex. R3, at 1; id. Ex. R4, at 1; id. Ex. R5, at 1. As a part of this project, Baird and O'Flahavan signed releases, granting the PCC the right " to use and reproduce [their] photographs and videos." See Third Siegel Decl. Exs. S134-S-135, ECF No. 93-37. These releases also stated that " [a]ll original images photographed for the [PCC] become the property of the [PCC]." See id. Filming on this first Chicago trip was done by Baird and O'Flahavan, in addition to the plaintiff, and the plaintiff can be seen on camera in many of the tapes filmed. See Defs.' Facts ¶ 36.

On August 14, 2007, both the plaintiff and Kamau first communicated with Ruppel via e-mail about the preliminary results of their scouting. The plaintiff conveyed to Ruppel that he had documented several Chicago police officers drinking heavily, many of whom arrived and left in official police vehicles. See Ruppel Decl. Ex. R6, at 2, ECF No. 93-9; Third Siegel Decl. Ex. S37, at 1, ECF No. 93-29. The plaintiff concluded that " [y]ou definitely need more people to do this right." Third Siegel Decl. Ex. S37, at 1. Kamau concurred, stating that, after " monitoring the bar checks with Greg over the last 24 hours . . . we should move on this now while things are going our way," and " [w]ith a full team I believe we can documents of [sic] extraordinary conduct." Id. Based on these strong early results, Ruppel agreed to let the plaintiff and his colleagues stay in Chicago for several more days, gathering more video of police officers drinking. See Defs.' Facts ¶ 32. Again, all of the plaintiff's e-mail communications during the first Chicago trip were sent to and from the " gslate@policeabuse.org" address. See, e.g., Ruppel Decl. Exs. R6-R11, ECF Nos. 93-9 to 93-10; Third Siegel Decl. Exs. S37-S38, S43, ECF Nos. 93-29 to 93-30.

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Once the first leg of the Chicago project was completed, Kamau and Ruppel began discussing a larger return trip to Chicago in September 2007. See, e.g., Third Siegel Decl. Exs. S48-S49, S52, ECF Nos. 93-30 to 93-31. Due to scheduling issues, however, the return trip was postponed until the second week of October 2007. See, e.g., id. Ex. S55, ECF No. 93-31; Ruppel Decl. Ex. R13, ECF No. 93-10. In preparation for the return trip, Kamau suggested to Ruppel in early September 2007 that the plaintiff travel to New York " to go over the video and create a comprehensive list of the police agencies, individual officers and drinking locations we have on tape." See Third Siegel Decl. Ex. S57, ECF No. 93-31. In arranging for the plaintiff's travel to New York, Ruppel asked whether he should contact the plaintiff directly, but Kamau replied " don't worry about that, when things get at this level everything goes through me." See id. Ex. S61, ECF No. 93-32. The plaintiff's trip to New York did not take place as originally planned, but instead took place in December 2007, as discussed below.

2. Second Chicago Trip

On September 24, 2007, the plaintiff notified Kamau that a police benefit event was being held in Chicago on September 28, which appeared to everyone involved to be a good opportunity to gather more film of police officers over-drinking. See id. Ex. S76, ECF No. 93-35. Ruppel approved of the plaintiff and a cameraman traveling to Chicago to capture film of the event, and he also approved of ABC covering travel and other " incidental costs" of the trip. See id. Ex. S81, ECF No. 93-35. While in Chicago, the plaintiff communicated with Ruppel via e-mail about the events that he and " our camera guy Moses" were attending, and also requesting additional camera equipment. See Ruppel Decl. Exs. R19-R23, ECF No. 93-10. After the second Chicago trip, the plaintiff again reported back to Ruppel about the results, saying that " [i]t was very productive," and informing Ruppel that " [m]y expenses totaled approximately $600.00. What is the best way for me to get that as soon as possible?" See id. Ex. R23.

3. Third Chicago Trip

The third and final trip to Chicago took place between October 8 and October 14, 2007. See Defs.' Facts ¶ 49. The plaintiff arrived several days before the ABC team, on October 8, and began scouting locations and filming police officers, some of which activity he communicated directly back to Ruppel via e-mail. See, e.g., Ruppel Decl. Exs. R27-R34, ECF No. 93-11. [8] The other individuals who worked with the plaintiff during this third trip to Chicago included: (1) a videographer named Brianna Heard, who was a friend of the plaintiff's, see Dep. of Brianna Heard at 11:2-4, 11:20-12:7, ECF No. 93-26; (2) Sunny Antrim, who was an ABC employee, see Decl. of Sunny Antrim (" First Antrim Decl." ) ¶ 1, ECF No. 93-14; (3) Sarra-Jane Piat-Kelly, a specialist in hidden-camera investigations whom ABC hired to consult on the trip and provide what are known as a " button camera" and two " purse cameras" for use on the project, see Defs.' Facts ΒΆ 53; and (4) a Chicago-based freelance camera crew, whom ABC also hired to participate in ...


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