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
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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