Bit Parts

Courts Refuse to Hand Over Documentary Audio and Outtakes

The U.S. District Court for the Eastern District of Pennsylvania granted summary judgment against attorney A. Charles Peruto Jr. in his replevin suit to gain possession of computer files containing unflattering remarks he made, during an interview for a documentary on rapper Meek Mill, about Peruto's client Judge Genece Brinkley's handling of the rapper's criminal case. Peruto v. ROC Nation, 18-4468. Without stating that he was speaking off the record about Judge Brinkley, Peruto had commented after the camera was turned off but audio still recording. A replevin claim typically seeks the return of physical property. Federal District Judge Gerald Austin McHugh noted: “I do not dispute that sound recordings or digital files may constitute property in certain legal contexts. … To the extent Peruto also asserts a property interest in his words themselves — separate from the data or files containing them — no court has held that the contents of a recording are subject to replevin.” Judge McHugh added: “Claiming exclusive possession of words knowingly communicated to others presents an inherent contradiction. Once words have been expressed to another, the speaker would seem to have forfeited the exclusive right to 'possess' them … [T]he means of preservation are distinct from the words themselves.” In a different case, the New York Supreme Court, New York County, quashed a subpoena seeking outtakes from the documentary Rock and a Hard Place, about a rehabilitation program for young felons, produced by and featuring actor/wrestler Dwayne “The Rock” Johnson. In the Matter of the Application of Home Box Office Inc., 153946/2019. The subpoena from a correctional officer who had worked at the rehabilitation program demanded “any and all recordings including, but not limited to, a copy of the documentary itself and any 'outtakes'[.]” Christy Laster, the correctional officer, sought the outtakes for use in her defense in a criminal case in Miami-Dade County, FL, in which she is charged with bribery and extortion, among other things. Describing New York's Shield Law, N.Y. Civil Rights Law §79-h, which protects information gathered by journalists, as “the strongest in the nation,” Justice Carol R. Edmead noted the correctional officer was arguing that The Rock's participation in the HBO documentary “rendered the project a 'celebrity reality TV show,' as opposed to a 'documentary' entitled to protection.” Justice Edmead explained that Laster “cites no authority for the notion that the mere involvement of a celebrity in a project renders it somehow incapable of being classified as a documentary, or that a celebrity known for other endeavors cannot be deemed a 'journalist' under the statute.” “Furthermore,” the justice wrote, “the Court notes that even were the project more entertainment-focused, the broad definition [of 'journalist' in the state Shield Law] would still likely apply as long as one of the purposes of the project was disseminating news to the public about the youth incarceration program.” As for whether the outtakes were “critical or necessary” to Laster's criminal defense, Justice Edmead emphasized that Laster “cannot argue that any information contained in Petitioner's outtakes is critical and necessary when Respondent does not know what the outtakes actually captured. Respondent cannot contend that her defense 'rises or falls' on the basis of footage that may not even exist.”

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Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. He is also an entertainment attorney, as well as author of the books Baby You're a Rich Man: Suing the Beatles for Fun & Profit and They Fought the Law: Rock Music Goes to Court, the latter which is available in an updated, expanded edition in Amazon's Kindle Store. For more information: www.stansoocher.com.