Copyright Claims Stick Against D.C. Law Firm
A woman who secretly videotaped sexual harassment by her supervisor at work can pursue copyright infringement claims against a Washington law firm that allegedly made the video public—but only if she drops her anonymity.
March 27, 2015 at 07:05 AM
3 minute read
The original version of this story was published on National Law Journal
A woman who secretly videotaped sexual harassment by her supervisor at work can pursue copyright infringement claims against a Washington law firm that allegedly made the video public—but only if she drops her anonymity.
The woman, who filed the lawsuit under the pseudonym Jane Roe, is a journalist who worked at Phoenix Satellite Television. She recorded a supervisor sexually harassing her in 2012 using a cellphone video camera hidden in her purse, according to court documents. She claimed that a co-worker who helped her save the video for preservation purposes used it in pursuing his own lawsuit against Phoenix in violation of her copyright.
Jane Roe sued the co-worker, Meixing Ren, and Ren's lawyers at the Washington employment firm Bernabei & Wachtel for copyright infringement, racketeering and computer fraud. On Thursday, U.S. District Judge Tanya Chutkan said the copyright claims could proceed. She dismissed the rest of the complaint.
Chutkan said that if Jane Roe wanted to move forward with her lawsuit, though, she would have to use her real name. Roe had argued that the case involved sensitive allegations of sexual harassment, but the judge said the lawsuit dealt with copyright issues, and not the underlying sexual harassment.
The judge also noted that Roe's name was included in documents filed in Ren's lawsuit against Phoenix. Roe was identified in that case as Bingru Wang.
“Plaintiff's complaint is not against her assailant and will likely not involve the graphic details of her assault, but is instead at least one step removed from the actual events of September 6, 2012,” Chutkan wrote. “Moreover, plaintiffs' name is already publicly associated with the video and the underlying incident, through pleadings and motion practice in the Ren suit.”
Chutkan gave Jane Roe until April 2 to notify the court whether she planned to pursue the case using her real name.
Jane Roe's lawyer, Eric Menhart of Lexero Law Firm, said on Friday that he and his client were pleased that at least some of the case survived. “We're evaluating what we might do as far as providing the true name of the plaintiff,” he said.
Lynne Bernabei, a name partner at Bernabei & Wachtel who is also named as a defendant in the lawsuit, declined to comment. Laura Steel of Wilson Elser Moskowitz Edelman & Dicker, who is representing Bernabei and her firm, could not immediately be reached.
Jane Roe previously sued Bernabei, Bernabei & Wachtel and Ren in D.C. Superior Court over the video issue. Roe is appealing the dismissal of that case in the D.C. Court of Appeals.
In the federal court case, Jane Roe argued that the video was “creative” enough to qualify for copyright protection, citing “judgments as to the sight and sounds” that she made in recording the incident on her phone. She applied for and received copyright registration for the video in October 2013, according to court papers. Bernabei and Ren argued there was no such creativity involved.
Chutkan said she had to accept Jane Roe's allegations as true at this stage of the case. However, she hinted that the “creativity” argument was shaky.
“To the extent these allegations suffice to nudge the video across the (low) threshold of creativity, they do so just barely,” the judge wrote.
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