The Volokh Conspiracy
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Court Rejects Idea Theft / "Hot News" Claim by Occasional Fox Guest Against Fox
Bonus: Calling someone a "nut" isn't libel.
From today's Second Circuit decision in Greer v. Fox News Media, by Judges Barrington Parker, Gerald Lynch, and Raymond Lohier:
Steven Eric Greer, proceeding pro se, appeals from a … [judgment] dismissing and denying leave to amend his claims of unfair competition, unjust enrichment, misappropriation of "hot news," defamation, tortious interference with contractual relations and with prospective economic advantage, and intentional infliction of emotional distress against various news organizations and individuals. Greer primarily claims that the defendants used his news tips without compensating or crediting him, and that they also defamed him by "blacklisting" him from the news media industry….
"Section 301 of the Copyright Act expressly preempts a state law claim only if (i) the work at issue 'come[s] within the subject matter of copyright' and (ii) the right being asserted is 'equivalent to any of the exclusive rights within the general scope of copyright.'" … [B]oth unfair competition claims "grounded solely in the copying of a plaintiff's protected expression" and unjust enrichment claims satisfy the general scope requirement.
As to the first requirement, citing Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC (2019), Greer argues that his unfair competition and unjust enrichment claims are not preempted because they concern unprotectable ideas from blogs and emails, rather than reproduced portions of books, and therefore fall outside the subject matter of copyright. We disagree. The subject matter of copyright encompasses ideas expressed in "'any tangible medium,'" including blogs and emails. And although copyright protection "does not extend to an idea," we have explained that where "the ideas that are the subject of the claim were fixed in writing—whether or not the writing itself is at issue—the claim is within the subject matter of copyright" for purposes of preemption. So even if we assume that the "factual content" in Greer's blogs and emails is itself "uncopyrightable," expressing that content in a blog, email, or other tangible medium nonetheless brings it within the subject matter of federal copyright law….
We also affirm the District Court's judgment insofar as it dismissed Greer's misappropriation of "hot news" claim because Greer failed adequately to allege the basic elements for such a claim, namely: (1) that he gathered "time-sensitive" information, (2) that he was in "direct competition" with the defendants, and (3) that the defendants' "free riding" on his efforts to collect information "substantially threaten[s]" the "existence or quality" of his journalism. Nat'l Basketball Ass'n v. Motorola Inc. (2d Cir. 1997).
Nor are we persuaded by Greer's argument that the District Court erred in dismissing his defamation claim…. [Greer] identifies only one specific published statement that might qualify as defamatory. That statement, that he was a "nut," is not defamatory because it "amount[s] to no more than name-calling or a general insult, a type of epithet not to be taken literally and not deemed injurious to reputation." Klepetko v. Reisman (N.Y. App. Div. 2007).
Finally, we conclude that Greer has abandoned his tortious interference and intentional infliction of emotional distress claims because, even reading his appeal brief liberally, he does not contend that the District Court erred in dismissing them….
Greer's proposed amendments [to his Complaint] fail to state a claim for breach of an implied-in-fact contract. Under New York law, "[a]n implied-in-fact contract requires such elements as consideration, mutual assent, legal capacity and legal subject matter." In particular, "[t]he element of mutual assent … must be inferred from the facts and circumstances of each case, including such factors as the specific conduct of the parties, industry custom, and course of dealing." Greer's proposed amendments fail to allege that there was mutual assent between him and the defendants to compensate or credit him for his news tips. Accordingly, we conclude that the District Court did not abuse its discretion in denying Greer's motion for leave to amend his complaint a third time.
For more on the decision below, see this post from last year. Congratulations to Steven Mintz and Terence McCormick (Mintz & Gold LLP) and Stephen Wu (Fox Corp.), who represent the defendants.