Man filmed his partner’s labor, then sued TV companies that picked up the video.
A father who live-streamed his son’s birth on Facebook and proceeded to sue for copyright infringement several media outlets that used the clips has lost his case.
US District Judge Lewis Kaplan ruled yesterday that the lawsuit filed by Kali Kanongataa must be thrown out, after the American Broadcasting Company and other defendants filed motions arguing that their use of the clips was covered by “fair use.”
Kaplan’s reasoning wasn’t included in his written order. Minutes from yesterday’s court hearing aren’t yet available. But ABC’s argument in favor of fair use is on the public record, and Kaplan presumably accepted some or all of that argument.
Kanongataa started broadcasting his wife giving birth on Facebook in May 2016, intending to share it with family and friends. According to news reports, he realized it was actually streaming publicly after about half an hour, but he decided to leave it that way. That led to about 120,000 people worldwide watching his partner, Sarah Dome, deliver their child.
In September, Kanongataa filed suit (PDF) against ABC and Yahoo for showing portions of his video on Good Morning America as well as the ABC news website and a Yahoo site that hosts ABC content. He also sued COED Media Group and iHeartMedia. In October, he sued magazine publisher Rodale over a clip and screenshot used on the website for its magazine Women’s Health. Last month, he sued Cox Communications.
In November, ABC lawyers filed a motion (PDF) calling their client’s use of the Kanongataa clip a “textbook example of fair use.” ABC used 22 seconds of a 45 minute video in order to produce a news story that would “enable viewers to understand and form an opinion about the couple’s actions.” The motion continues:
Where pictures or videotapes themselves are the focus of a major news story, news reporters may make brief use of selected footage to explain to the public what the story is about.
If the Copyright Act did not permit ABC to engage in this type of use, it would substantially inhibit important First Amendment activities by enabling copyright holders to exercise control over the public’s ability to understand news events. The Copyright Act specifically avoids this outcome.
Fair use of copyrighted works is permitted for news reporting, and ABC argues that the use of Facebook Live to broadcast a birth was a “socially significant phenomenon.” That’s backed up by Kanongataa himself, who said he thought it was the first time Facebook Live had been used to broadcast a birth, ABC lawyers note.
The ABC clip is clearly social commentary, because it treats the filming itself as newsworthy, not the underlying event, the brief states.
Judge Kaplan’s order shuts down Kanongataa’s lawsuit against ABC, NBC, Yahoo, and COED Media Group. A lawsuit against CBS and Microsoft was dropped in November, possibly due to a settlement. The case against Rodale is still pending and is also being overseen by Judge Kaplan. Kanongataa’s lawsuit against Cox was filed in a different district and remains pending in the Eastern District of New York.
A lawyer for Kanongataa didn’t respond to a request for comment about the order.
Kanongataa and Dome spoke to the TV show Inside Edition for a report that came out shortly after the birth. During that segment, they explained that just a day after Dome gave birth, Child Protective Services took the baby into custody. Someone from a past relationship had recognized Kanongataa on Facebook and reported to CPS that he had domestic violence allegations against him. Kanongataa denies those allegations.
“They came in and took our baby,” Dome said on the program. “I only spent one night with him.”