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Blog Criticism of Psychiatric Hospital (copyright and libel)

March 18, 2013

This case was decided March 14th in the US District Court for the Eastern District of North Carolina. “Zombies” is in a quote of alleged libel or criticism and cited to uphold fair use defense for the blogger criticism of the copyrighted image.

ASCEND HEALTH CORPORATION, UHP, LP, d/b/a UNIVERSITY BEHAVIORAL HEALTH OF DENTON, RICHARD KRESCH, M.D., ATIQUE KHAN, M.D., Plaintiffs,
v.
BRENDA WELLS, JOHN AND JANE DOE 1 – 10, Defendants.

NO: 4:12-CV-00083-BR
2013 U.S. Dist. LEXIS 35237

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NORTH CAROLINA, EASTERN DIVISION

Decided March 14, 2013, the Opinion of Judge W. Earl Britt explains:

zombie hon judge earl britt

Plaintiffs are entities and individuals affiliated with a private psychiatric hospital in Denton, Texas. … Defendant Wells is a resident of North Carolina who was a patient at UBH…. plaintiffs allege that Wells is the registrant and/or creator of two internet blogs on which she has posted defamatory statements about plaintiffs.

and

They further allege that she has also posted such statements on other websites and has created a Facebook page, YouTube channel, and Twitter feed, all of which link to one of her blogs. (Id. ¶¶ 33, 37, 39, 41, 44, 46, 48, 50, 52, 53.) They claim that she has used copyrighted images and a copyrighted still image from a video from UBH’s and Ascend’s websites without a license. (Id. ¶¶ 29(h), 29(i), 37(a), 39(a), 54.) Based on this conduct, plaintiffs assert the following claims against defendants: (1) “defamation/libel” under North Carolina law; (2) violation of North Carolina’s Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1 et seq.; (3) libel under Texas law; (4) business disparagement under Texas law; (5) copyright infringement under 17 U.S.C. § 101 et seq. and §§ 501-05; and, (6) civil conspiracy. Plaintiffs seek injunctive relief, compensatory, punitive, and treble damages, and attorneys’ fees

First there are issues of Choice of Law. Then regarding the libel claims, under Texas law, there is an exemption for the “fair reporting privilege”, Tex. Civ. Prac. & Rem. Code § 73.002(a – BUT

the privilege does not cover the statements on Wells’s blogs because neither blog is a “newspaper or other periodical” under § 73.002(a).

Footnote: As noted previously, plaintiffs allege that Wells published defamatory statements not only on her blogs but also on other websites, for example, dallas.craigslist.org. Obviously, the privilege would not extend to the statements Wells made on those other websites.

I would have thought craigslist was even more like a newspaper but that footnote says I am “obviously” wrong– Thankfully, the Court dismisses the copyright claims because without even seeing it, I can tell it sounds like ‘obvious’ fair use criticism — still the Court doesn’t seem to think that was so obvious and explains thoroughly:

The parties’ debate regarding the fair use defense centers on the first and fourth statutory factors identified in Bouchat. Because they do not address the second and third factors, the court presumes those factors are neutral in considering the use. The first factor the court considers is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Bouchat, 619 F.3d at 308. “This inquiry ‘may be guided by the [fair use] examples given in the preamble to § 107, specifically, ‘criticism, comment, news reporting, teaching . . . scholarship, or research.'” Id. (citations omitted) (alteration and omission in original). There is no doubt that Wells’s use of the images is to criticize UBH’s and Ascend’s purported business practices. For example, Wells uses many of the subject images on the Facebook page she created entitled “UBH Denton Sucks.” (See Compl., DE # 1, ¶ 39 & Ex. D, DE # 1-4.) The “Community” of the page identifies UBH as “a private freestanding psychiatric hospital specializing in insurance fraud and false imprisonment of voluntarily-admitted patients,” and next to images of UBH’s courtyard and logo, Wells posted:

They cleaned up all the cigarette butts and removed all the chain smoking patients who are medicated and look like zombies just for this picture. And, if you could actually see where the photographer is standing, and what’s behind him, you’d see a huge wall. As in, to keep you confined until your insurance benefits run out.

(Compl., Ex. D., DE # 1-4.) The juxtaposition of the serene image and Wells’s direct statements about the image serves to illustrate her criticism.

Even though Wells’s use of the images as criticism falls within one of the statutory, fair use examples, fair use is not presumed; Wells must also show that the purpose behind her use is “transformative.” See Bouchat, 619 F.3d at 309 (“Even the six uses specifically listed in the preamble to § 107 do not create presumptive categories of fair use protection. A transformative purpose is also required.” (citation omitted)). “A transformative use is one that employs the copyrighted work in a different manner or for a different purpose from the original, thus transforming it.” Id. at 308-09 (quotation and citation omitted) (alterations removed).

UBH and Ascend use the images on their websites to convey that they provide quality healthcare services to attract potential customers. (Pls.’ Br., DE # 20, at 26.) Wells uses the images for a different reason, that being, to criticize the two companies. As such, this use is transformative. See Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, No. C 09-1468 SBA, 2009 WL 2157573, at *5 (N.D. Cal. July 17, 2009) (finding that defendant’s use of photographs of two of plaintiff’s executives as a vehicle for criticizing plaintiff’s alleged business practices was “fundamentally different” than the original promotional reason), aff’d, 422 F. App’x 651 (9th Cir. 2011).

Therefore,

CONCLUSION

For the foregoing reasons, the motions to dismiss are GRANTED IN PART and DENIED IN PART. Plaintiffs’ first and second claims, which arise exclusively under North Carolina law, civil conspiracy claim, and copyright infringement claim are dismissed. Plaintiffs’ claims for libel and business disparagement under Texas law remain. Although plaintiffs request leave to amend their complaint “to the extent this Court finds Plaintiffs’ Complaint lacking,” (Pls.’ Br., DE # 20, at 27), the deficiencies noted in regard to the claims dismissed cannot be cured by amending the complaint at this time.

Wells is still facing libel and disparagement claims under Texas law. I don’t know but would presume that kicks it out of Federal Court and only Texas Courts where they may not have jurisdiction on Wells? I’m not sure about that. The North Carolina claims are gone and the copyright claims which should never have been there. Copyright is becoming a weapon of choice against criticism and dissent and it is both sad and scary that Wells even had to defend those claims in this case.

For more updates see the blog Worst Hospitals in American: UBH Denton Sux. Over at that blog, Wells is “overwhelmed” but her sense of humor is holding up:

when I first started the site?… I honestly didn’t see two lawsuits, over 5 years and 50,000 visitors to a website coming down the pike. If I had? I probably would have just given up and resigned myself to the fact that in this world? Sometimes you’re the windshield, but usually… you’re the bug. In any case…. let’s lighten things up a bit. Hey…. gotta riddle for you! What’s the last thing that goes through a bug’s mind when it hits the windshield? Its ass.

She is being fueled by an outpouring of people who claim reason to hate this hospital and wrote this week:.


I listened on the phone this week as the family that posted this comment cried and talked about their loss. I cried myself…. after five years you would think I would be over what happened. But, I guess I’m not. Reporters are calling me now. I of course can’t talk to them given my legal status, but, I sure would like to.

ZombieLaw wishes Ms. Wells the best of luck in her collection of real life American horror stories. The hospital should be helping to flush these stories not suppress them with aggressive copyright law.

Recall other ZombieLaw posts related to Hospitals (including “tied to a bed injected with dilantin at Walter Reed” == And also consider blogging criticism in the Anonymous Zombie: “Cybernetic Zombie that lives on in Cyberspace

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13 Comments
  1. Why thank you so much for the good wishes. We’ll see what happens . 🙂 And thank you for reporting on the facts of the case and the decision fairly and accurately.

    • yes, well thank you for getting a distinguished federal judge to sign his name to an opinion with the word “zombies” in it
      – I assume that came from your attorney’s brief? was it raised at oral argument?

      • I don’t have all the docs in front of me or that are in production, but, I do remember noting that all the medications and such that they gave me made me “feel” like a zombie? Maybe that’s it?

        There were no oral arguments to my knowledge, they just submitted the motion to the court and we waited about 6 or 7 months on a response.

        Zombies….love it!

      • We had made reference in my filing and on my blog to the state of us being “zombie-like” in the hospital, as a result of what in MY OPINION was over-medication. I think that’s how that got in there, Zombielaw.

      • as above, in the original post, the Court quoted the criticism of the images:
        “They cleaned up all the cigarette butts and removed all the chain smoking patients who are medicated and look like zombies just for this picture.”

        This quote is used by the Court to explain that the use of the picture was fair use criticism and that the criticism was of the actual picture displayed and so therefore not copyright infringement because it was a transformative commentary.
        I kind of assume your lawyer put that particular quote in brief as a defense to copyright infringement — but maybe it’s in plaintiff brief as the accusations of libel? or I guess maybe the Judge’s clerk found it on your site…

  2. Michael permalink

    I’ve been following this for several years. Can someone “dumb this down” for me?

    • haha – funny because I thought that’s what my post did – I would personally suggest taking the time to read Judge Britt’s decision but I guess my edited version is still perhaps more than the average zombie wants to read ….

      so if you want a really dumbed down version, it’s — zombie zombie zombie read the opinion!!!! — ok ok fine it’s — be careful which hospitals you go to – and blogs aren’t newspapers in Texas libel law so whistleblowers beware law suits – and if you use copyright in fair use criticism be sure to make it “transformative” –

      That last part is particularly concerning because who decides whether the criticism was sufficient to transform and some other poor blogger will have to reach that issue another day… see also report from Prof. Garfield at Pace University “Should Blogs Enjoy the Same Defamation Immunity as Newspapers?” http://socialmediablawg.blogs.law.pace.edu/2013/03/19/should-blogs-enjoy-the-same-defamation-immunity-as-newspapers/

  3. Jessica Rogers-Hall permalink

    I cryed at the end of your blog about Brenda’s law suit. This hospital and it’s owners should be shut down for what goes on in there. I wish I had found her page when I was looking for a hospital to detox of pain meds. I was not so lucky I found it six weeks after being raped, druged, and thrown out in mid detox. Brenda has helped me tell my story, she has held my hand threw 8 months of hell.. Ubh mayhill are bad places and someone has got to stand up to them, like she has. She is a amazing woman who has helped so many people.. Thank you for helping her story be told and because of her people like me have a voice!! Thank you thank you thank you…,,,,

    • Jessica, my dear… thank you so much. Thank you for being strong in the face of adversity and tragedy. Thank you for making me realize the last 5 years weren’t all in vain. It has been my pleasure to hold your hand and be your friend.

  4. Reblogged this on Worst Hospitals In America: UBH / Mayhill and commented:
    For all my zombie loving friends out there (whether with or without klonopin)…..

  5. If the Texas claims survive, then perhaps a motion to strike under Texas’ anti-SLAPP law would be worth researching?

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