Wednesday, September 12, 2018

In plagiarism/false attribution case, use was de minimis, fair, and protected by 1A

Israel v. Strassberg, 2018 WL 4290394, No. 2:15-CV-741 (D. Utah. Sept. 7, 2018)

Israel entered the Ph.D. Psychology program at the University of Utah, which required a master’s thesis, and Strassberg was her advisor. Israel’s master’s thesis turned on the concept of relying on viewing time to measure a subject’s sexual interest. To carry out a study for her thesis, Israel selected and arranged a set of images, wrote instructions and survey questions, and created the syntax necessary for the study to be administered by a computer program.  Strassberg felt that her work was important to the field of study and, after the thesis was approved, Strassberg submitted it for publication in an academic journal with his name included as second author. Their relationship eventually became strained.

Strassberg was also defendant Rullo’s advisor, and he allegedly shared Israel’s work with Rullo without authorization.  Rullo’s subsequent master’s thesis used Israel’s study materials and methods, building on it by examining gay and lesbian populations where Israel had only looked at heterosexuals.  Strassberg likewise submitted this thesis for publication, where it included Strassberg as second author and Israel as third author, allegedly without her consent.

Israel “left the University on contentious terms without completing her Ph.D. program.” But Strassberg’s graduate students continued to build on her original research.

Copyright infringement: Israel registered: (1) the arrangement and compilation of the images used in the viewing time study; (2) the written instructions and surveys included in the viewing time study; and (3) the computer syntax, which allowed her to administer the study via computer. Baker v. Selden instructs: “[W]hilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practice and use the art itself which he has described and illustrated therein.”  This was Baker redux. Israel’s ideas—“the use of images of attractive individuals and scenery, tracking viewing time as a measure of sexual interest, asking participants to rate images on a scale, inquiring as to participants’ sexual orientation and/or sexual interests and comfort levels, and other elements related to the process and method of the study”—were free for all to use.

What about Israel’s specific expression of the ideas?  Rullo’s thesis allegedly copied the “substance” of Israel’s literature review; explained the same stimulus and procedure as Israel did; used her data; copied her methods; and recited her original ideas, all while citing her numerous times.  None of this constituted infringement of protectable elements.  There was direct copying of three sentences from the registered works:

We would like you to rate each of the following pictures in terms of how sexually appealing you find the picture to be. Please make your ratings on a scale of 1-7 where 1 is “not at all sexually appealing” and 7 is “extremely sexually appealing.” We are interested in your rating of each picture, not how you believe others might rate the picture.

This copying was not significant enough to qualify as infringement, and even if it had been, it would be fair use.  [Yay!  Separate analysis of the two reasons!]  Fair use: (1) nonprofit educational purpose; (2) the original was highly factual, not highly expressive; (3) only a minimal amount was copied word for word and the qualitative significance was low because the copying “merely explains a process used in conducting the study”; and (4) unrestricted copying of the type Rullo engaged in would not have a substantially adverse impact on the potential market for the original.  Rather, “[a]cademic studies and publications often flow from previous studies and publications. Overlap and building upon research materials is critical to the advancement of science.”  Even if Israel had registered more of her work and could thereby claim more copying as infringement, that copying too would be insufficient to infringe and also fair.

The same rationales also protected the published articles and Rullo’s dissertation; specifically, the dissertation simply said that “the stimuli and procedures in the present study were identical to those used with the heterosexual” and cited Israel.  “A description of the copyrighted materials” couldn’t create a factual issue on substantial similarity, nor could use of Israel’s materials in conducting the studies underlying the findings contained in other documents/publications.

Lanham Act: Israel argued that defendants falsely attributed authorship to her in presentations and papers and failed to appropriately attribute her authorship in [possibly other?] presentations and publications. Rather than pointing to Dastar, the court ruled that her name wasn’t used “in commerce” because the articles and presentations at issue weren’t “commercial” but rather scientific and educational. “Academic publications fall outside of the purview of congressional reach under the commerce clause because they include non-commercial speech, which is entitled to the highest levels of protection by the First Amendment.”  Even if the publications had paying subscribers, that didn’t make individual articles into commercial speech subject to the Lanham Act.  Plus, her name wasn’t used/misused “in commerce” because including or excluding her name didn’t provide any commercial benefit to defendants or to the publications.  [This is really “use as a mark,” but ok.]  Israel also provided no evidence that she suffered a loss as a result.  Summary judgment granted.

There was a state law false advertising claim, over which the court declined to exercise its supplemental jurisdiction, though given the First Amendment rationale of the Lanham Act result I might’ve gone a different direction with that.

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