HUNTINGTON – One of the businesses owned by Republican gubernatorial candidate Chris Miller and his family has filed a federal lawsuit against fellow GOP candidate Patrick Morrisey’s campaign, a political action committee and a host of media companies accusing them of copyright infringement.
DM Motor Inc. filed the lawsuit April 12 against Black Bear PAC Inc.; Morrisey 2024 Inc.; Gray Media Group Inc. doing business as WSAZ, WVVA, WIYE, WOVA, WTAP, WDTV and WVFX; WCHS Licensee LLC doing business as WCHS and DCHS; Nexstar Media Inc doing business as WOWK, WVNS, EVNS, WTRF, GTRF, WBOY and EBOY; Thomas Broadcast Co. doing business as WOAY-TV; DirecTVLLC as a joint venture in D2 Media Sales, Ad Systems Inc. doing business Market Specific Ads; A4Media LLC; and Effectv, a division of Comcast Corporation.
DM Motor, or Dutch Miller Kia, says the original video content it has used in advertising was created to raise the company’s profile and to further sales. It says the videos are original works of authorship, and the company is the holder of the exclusive rights under the Copyright Act of 1976 to reproduce, distribute, display or license the reproduction, distribution and/or display of the work.
Morrisey
| File photo
"The lawsuit speaks for itself," Sam Miller, president of Dutch Miller Auto, told The West Virginia Record. Sam Miller is Chris Miller's brother.
A spokesperson for Morrisey's campaign stood by the ads.
“Miller poses as a woman," Taylor Van Kirk told The Record. "He uses make-believe to act like a conservative. His company pretends to understand the law by attempting to squash free speech. Being governor is serious work and West Virginians are lucky Chris Miller will never get close to that office.”
The videos used in the Black Bear and Morrisey advertisements show Chris Miller dressed as Donald Trump and dressed in drag in television commercials for the company.
“The videos ran for a limited duration on West Virginia-based television stations and would be uploaded to Dutch Miller Kia’s YouTube page,” the complaint states.
Three of the DM videos were entitled ‘Dutch Miller Kia June Revised” from 2014, “Dutch Miller Trump 60 HD bville” from 2016 and “Dutcher Things” from 2020.
On April 6, the company became aware that several advertisements running in local TV markets contained portions of those videos. The ads said “Black Bear PAC is responsible for the content of this advertisement.”
“Black Bear did not contact anyone with Dutch Miller Kia before using the subject DM Video content in the advertisements,” the complaint states. “Black Bear did not seek permission from Dutch Miller Kia before using the subject DM Video content in the advertisements.”
On April 8, Dutch Miller Kia sent a letter to Black Bear requesting it cease and desist from using the DM videos in its ads. It also sent letters to the media companies to request they stop broadcasting the Black Bear ads.
The next day, Dutch Miller Kia learned other advertisements were running that contained portions of the DM videos by Morrisey’s campaign. It says his campaign did not seek permission to use the DM videos, and it did not consent to allowing Morrisey’s campaign to use the content. The company sent another cease-and-desist letter to Morrisey’s campaign and more letters about his ad to the media companies.
That same day, Dutch Miller Kia was provided a copy of a letter from a Washington, D.C., attorney named James E. Tyrell III with Dickinson Wright mailed to the attention of TV station managers encouraging the stations to “continue to air the ad.”
On April 10, it says Morrisey responded to the cease-and-desist letter with another letter from the same D.C. firm written by Charles R. Spies and Benjamin L. Mehr refusing to stop airing its ad.
Also on April 10, WCHS refused to stop airing the ads, as did Nexstar. On April 11, Gray refused to stop airing the ads. Dutch Miller Kia says Thomas, DirecTV, Ad Systems, A4Media and Effectv have failed to response to the requests.
Van Kirk shared a copy of the letter attorneys for Morrisey's campaign sent to DM Motor in response to its cease-and-desist letter. They call the claims "meritless" and say the inclusion of the videos in Morrisey's ads are allowed under the fair use exemption. The campaign also
"Instead, your vague claims appear to be a thinly veiled attempt to use corporate resources to suppress factually accurate political speech that is unfavorable to Chris Miller," the attorneys wrote. "Consequently, there is no legal basis for the campaign to stop airing these ads or for any station to breach their contractual obligations to air these ads.
"Although your letter does not explicitly state what material you allege is a copyright infringement, it appears the following frames are the subject of your letter."
The DM Motor complaint accuses the defendants of copyright infringement, and it seeks to have them enjoined and restrained from infringing on the company’s intellectual property. It also seeks statutory damage, court costs, attorney fees and other relief.
Dutch Miller Kia is being represented by Robert H. Sweeney Jr. of Jenkins Fenstermaker in Huntington.
Miller and Morrisey are two of the four leading Republican candidates for governor. Miller is a Huntington businessman, and Morrisey currently is West Virginia’s attorney general. The other two GOP candidates are former state lawmaker Moore Capito and Secretary of State Mac Warner. The primary is May 14.
U.S. District Court for the Southern District of West Virginia case number 3:24-cv-192