Is a California City Using Copyright to Prevent Resident From Posting Videos Criticizing Mayor and Council Members?

As recently reported, the city of Inglewood in California filed last March a copyright infringement suit in the Central District of California against Joseph Teixeira, one of its residents. The complaint claims he “copied and distributed no less than five of Plaintiff’s copyrighted works by making derivative works and posting copies of the derivative works on the Internet without authorization.” The case is City of Inglewood v. Joseph Teixeira, 2:15-cv-01815.

The “copyrighted works” at stake are videos of Council meetings, and the allegedly infringing use is the making and publishing on YouTube, under the name “Dehol Truth,” of six videos using footage of five meetings to comment on topics related to the meeting or to Council members. Defendant is heard in voice over, narrating his point of view on a particular topic. Footage of the meetings sometimes cut to documents, such as a letter or a statute, to further enhance the narrative. Defendant also added sometimes written text over the images. The complaint states that Defendant “merely use[d] the [videos] to get attention, generate income, and avoid having to create Defendant’s own legitimate videos.”

Defendant moved to dismiss the case, claiming that Plaintiff was precluded by California law from securing copyright protection in these public records, and that, even if Plaintiff indeed owned the copyright for the videos, their use by Defendant is protected by Section 107 of the Copyright Act. See here, here and here for Defendant’s arguments. Defendant is represented pro bono and the briefs are a delight to read.

Can a City hold a Copyright in Recordings of its Meetings?

 Section 105 of the Copyright Act precludes copyright protection for any work of the United States Government, but applies only to the federal government. Plaintiff cited County of Santa Clara v. Superior Court, a California Court of appeals case, to posit that state law determines whether copyright may be claimed in works of state and local government. In this case, the California Court of appeals was not convinced by the County’s interpretation of Section 6254.9(e) of the California Public Records Act (CPRA), which applies to computer software developed by a state or local agency, and states that "Nothing in this section is intended to limit any copyright protections,” as “expressly provid[ing] for copyright protection despite production of public records" (at 1332).

Plaintiff conceded in its Opposition that California law precluded it from copyrighting the videos, but then argued that it is not bound by state law.

Are Defendant’s Videos Protected by Fair Use?

Even if the videos are indeed protected by copyright (not likely), is their use by Defendant fair?

The complaint alleged that Defendant “had made derivative works of the [videos] by reproducing [them] in substantial part. The derivative works have no critical bearing on the substance or style of the original composition. The derivative works (“Infringing Copies”) merely use the Copyrighted Works to get attention, generate income, and avoid having to create Defendant’s own legitimate videos.”

Defendant addressed the four fair use factors. He first claimed that the purpose and character of the use weighed in his favor as his videos were transformative. Defendant’s videos used “short clips from lengthy City Council meeting heavily modified and interspersed with original text and audio, for the entirely different purpose of criticizing officials for their conduct at these proceedings.”

While noting he would prove that his use was non-commercial should the case survive the motion to dismiss, Defendant argued that even if the court would be convinced that the use was commercial, a commercial use can still be fair, citing the Supreme Court Hustler Magazine, Inc. v. Falwell case.

Defendant also claimed the second fair use factor, the nature of the work used, to be in his favor, as the videos were “purely informational works” with a copyright “at best thin,” if any. As for the third factor, the amount taken, Defendant “use[d] a reasonable amount of the footage [of the meetings]” to create his videos.

As for the fourth factor, the effect of the market, Defendant argued that “[n]ot only does [this factor] unequivocally favor fair use, this inquiry also exposes the completely baseless nature of this action,” as Plaintiff cannot claim any economic harm since its duty is to provide a copy of meetings for free to the public, and thus, there cannot be a market for such meeting videos. Plaintiff conceded that California law prohibits it from making money from these public records, but argued that it had to recoup the cost of installing a video recording system. But Defendant  argued that Section 6253(b) of the CPRA provides that public agencies may only charge the public for “direct costs of duplication” and thus the cost of producing the public record cannot be charged to the public.

Defendant’s Videos and First Amendment

Defendant claims that Plaintiff is using copyright to silence political speech, even though “copyright law is not designed to stifle critics” (citing Fisher v. Dees, a 1986 9^th Circuit case). Defendant also cited California’s Brown Act which states that “public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”

For Defendant, assessing a copyright in a public record would limit public access to this information. He claims that his “speech concerning public affairs is more than self-expression; it is the essence of self-government… and it occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection,” citing the Supreme Court Snyder v. Phelps case, at 1215. Also, “[t]he City’s aim is clearly to silence [him], and to punish him for his harsh criticism of the Mayor. But his speech is constitutionally protected, and fully consistent with our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).”

A decision of the Court is expected soon. I will keep you informed.

Photo of Inglewood City Hall courtesy of Flickr user fauxtos under a CC BY-SA 2.0 license.

Photo of tapes courtesy of Flickr user makelessnoise under a CC BY 2.0 license.

Right of Publicity and Freedom of Speech Clash in Manhattan

This New York Appellate Division case is not a copyright case, but it may nevertheless be of interest to the readers of this blog, as it affirmed the First Amendment right of Defendant, a photographer, over the right to privacy of Plaintiffs’ children, whose pictures were taken surreptitiously using a high powered camera lens and became the subject of an art exhibition. The case is Martha Foster et al. v. Arne Svenson, (2015 NY Slip Op 03068).

Do I See A Privacy Bill?

Defendant Arne Svenson is a photographer. As he explained on his web site, “he has turned outward from his usual studio based practice to study the daily activities of his downtown Manhattan neighbors as seen through his windows into theirs.” The result of this work became the series The Neighbors, which was exhibited in 2013 in New York and Los Angeles, and will be exhibited next year in Denver. Svenson used a telephoto lens, inherited from a bird-watching friend, to take pictures, from his own downtown Manhattan apartment, of people living or working in a  building across the street, without their knowledge, taking advantage of its glass facade and open windows.

Defendant took pictures of Plaintiffs’ minor children, then three and one year old, which became part of the exhibition. Plaintiffs asked the defendant to stop selling these pictures, and defendant took down a picture representing the two children together, but kept offering for sale the picture representing Plaintiffs’ daughter alone. Plaintiffs then sent the gallery a cease-and-desist letter, asking it to take down the pictures from its site and to stop selling them. It complied, but the photographs were shown on several media channels reporting about the exhibition, and the address of the building was also made public.

Plaintiff filed a suit against Svenson, claiming invasion of privacy and intentional infliction of emotional distress. The New York Supreme Court, a court of first instance, denied the claim on August 5, 2013 and granted defendant’s motion to dismiss. Plaintiffs appealed.

New York’s Statutory Right to Privacy

New York State does not does not recognize a common-law right of privacy, and its only privacy statute,  New York Civil Rights Law §§ 50 and 51, is a right of publicity statute. The Appellate Division provides a short history of the New York privacy law in its discussion.

Under § 50, “[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” § 51 of the statute provides for injunctive relief and damages. As such, the statute only forbids nonconsensual commercial appropriations of the name, portrait or picture of a living person. If the person whose likeness has been appropriated consents to this use, or if the use is noncommercial, then it is not prohibited.

The New York Supreme Court had noted in the Svenson case that “the question… is whether the photographs used by the photographer in a show or as examples of his art qualified as a commercial use or for the purpose of advertising or trade” and that the New York legislature “also sought to protect the constitutional right of freedom of expression.”

Is Selling Art Commercial Appropriation?

The photographs taken by Defendant had been offered for sale. Does that mean that taking them without authorization constituted commercial appropriation? Plaintiffs were arguing that these photographs were bought and sold in commerce. However, the Appellate Division noted that New York courts “have refused to adopt a literal construction [of “for advertising purpose” and “for the purpose of trade”] because the advertising and trade limitations of the privacy statute were drafted with the First Amendment in mind.”

The Appellate Division also cited its own Nussenzweig v. diCorcia 2007 case, where plaintiff, Erno Nussenzweig, had claimed that defendant, Philip diCorcia, had violated his New York statutory right of privacy when presenting in an art exhibition, and selling to the public, a photograph of Plaintiff taken in the streets of New York. Plaintiff argued that the photographer had made a commercial use of his image. Indeed, diCorcia had grossed about $240,000 from the sale of a limited edition of the photographs from this exhibition, and the photographs had been sold for $ 20, 000 to $30,000 each.

The invasion of privacy action was found to be time-barred in Nussenzweig, but two Justices wrote in a concurring opinion that the artwork “constitutes a matter of general public interest entitled to First Amendment protection.” They noted that plaintiff’s photograph had been published “in both the popular press and art media [which] confirm[ed] that the image is "a matter of legitimate public interest to readers" so as to bring its use within the newsworthiness exception to the privacy statute” and that “the inclusion of the photograph in a catalog sold in connection with an exhibition of the artist's work does not render its use commercial, as plaintiff suggests [because][i]f the image is a matter of public interest, it is immaterial whether that interest is satisfied by viewing the original in a museum, art gallery or private dwelling or by perusing a reproduction in an art magazine or other publication.”

The Appellate Division concurred with the Nussenzweig concurrence. There was no doubt for the court that Defendant’s photographs must be considered works of art, as even Plaintiffs had conceded that Defendant was a renowned art photographer and that he had assembled photographs to present them in an art gallery exhibition.

For the Appellate Division, the fact that Svenson had made a profit from the sale of the photographs does not render the use of the photographs commercial, citing the Stephano v. News Group Publications 1984 case, where the New York Court of Appeals explained that it was the content of the article at stake, but not the publisher’s motive to increase circulation which determines, under the New York privacy statute, whether a particular item is newsworthy, and thus protected by the First Amendment, or merely commercial.

The Photographs are Protected by the First Amendment

New York courts may find that a particular use of someone’s likeness is protected by the First Amendment and is thus outside the scope of New York Civil Rights Law §§ 50 and 51. In our case, the photographs were presented in an art gallery.

The Appellate Division noted that, “[a]lthough the Court of Appeals has not been confronted with the issue of whether works of art fall outside the ambit of the privacy statute, others courts that have addressed the issue have consistently found that they do,”citing as an example the 2002 Hoepker v. Kruger Southern District of New York (SDNY) case, where the court found that that ”a careful weighing of interests” between privacy and freedom of speech is necessary, and must be done by the courts on a case by case basis. This may be particularly difficult if the protected speech is art, as art is not "newsworthy events or matters of public interest” the protection of which prevails over right of privacy, but stated that “New York courts have taken the position in the right of privacy context that art is speech, and, accordingly, that art is entitled to First Amendment protection vis-à-vis the right of privacy.”

Infliction of Emotional Distress?

Plaintiffs had also argued that the photographs had been obtained in an improper manner and thus should not been exempt from being considered as advertising or trade under the statute. They did not, however, cite any authority supporting this position. The Appellate Division took the view that Plaintiffs were thus arguing that “the manner in which the photographs were obtained constitute[d] the extreme and outrageous conduct contemplated by the tort of intentional infliction of emotional distress and serves to overcome the First Amendment protection.”However, the court did not find that Defendant’s behavior had been outrageous, even if the pictures were taken while the children were inside their home, as Defendant’s actions “certainly do not rise to the level of atrocious, indecent and utterly despicable.” Also, the Appellate Division noted that “the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available.”

An Appeal to the Legislature

New York, unlike other States, does not have a general invasion of privacy statute, only a right to publicity statute. While the Appellate Division reluctantly affirmed that there was no cause of action for violation of the New York statute, it added that “in these times of heighted threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists.” It remains to be seen if the New York Assembly will hear this plea.

You can also read about this case on The IPKat, in a post penned by Valentina Torelli. 

Image is courtesy of Flickr user cheb.odegaard under a CC BY 2.0 license.

Freedom of Speech Baby!

This is my first post on this blog, and I would like to dedicate it to the memories of the people who lost their lives yesterday in the terrorist attack in Paris, journalists, workers, and police officers.

This tragedy reminded me why I first became interested in copyright: because I love to read books and to read the press. When I was a kid, I read the adventures of the Grand Duduche, a comics created by Cabu, who was assassinated yesterday and later delighted watching Cabu live on French television on Wednesday afternoons, drawing cartoons following the enthusiastic suggestions of kids in the studio. Much later, I started reading Charlie Hebdo, and found Cabu there again, along with other cartoonists. The articles and the cartoons in the journal were often outrageous, but always thoughtfully written or drawn and forced the reader to have an opinion.

Writings are protected by copyright and they are also protected by freedom of speech. This is why a recent U.S. bill, H.R. 5893, is worth noting today. It is a bill “To Restore the First Amendment Rights of Photographers” which was introduced by Rep. Stockman (R-Tex.) on January 2. Its short name is the “Ansel Adams Act,” as an homage to the photographer who took many pictures of U.S. parks.

H.R. 5893 first reminds that photographers have been  threatened in recent years with seizure and forfeiture of their equipment and even have been arrested or threatened to be arrested when on Federal lands and spaces. However, no federal law allows such action. The bill states that these arrests violate freedom of speech and of the press protected by the First Amendment, as “[s]till and motion photographs are speech.”

The bill would oblige federal agencies wishing to restrict photography of its installations or personnel to first obtain a court order outlining the national security or others reasons for the restriction. The court order could, however, allow restrictions of photography if it “may lead to the endangerment of public safety or national security.”

The Act would also prohibit any federal agency to require fees, permits or insurance from photographers wanting to take still or moving images on “Federal Lands, National Parks and Forests, and public spaces, whether for private, media, or commercial use.” It would also prohibit officers to take equipment from the photographers nor could the photographers be ordered to erase the contents of a camera or memory card.

The current Rules and Regulations of the National Parks already states that “[v]isitors [which] are engaged in filming/photography intended for their personal use and enjoyment” are “generally” not required to have a permit. This policy would extend to commercial photographers under the bill, which is not necessarily good policy, as the national parks may need the fees for their maintenance.

The bill has been referred to the Committee on Oversight and Government Reform. 

US Supreme Court says public domain works can return to copyright

Yesterday the US Supreme Court, in its 6-2 decision in Golan et al v Holder, Attorney General, et al, held that §514 of the Uruguay Round Agreements Act (URAA) - which had been signed into law by President Clinton in 1994 and was aimed at restoring copyright protection in foreign works which had fallen into the public domain - does not exceed Congress's authority under the US Constitution's Copyright Clause. 

No longer a free concert 

Petitioners in the case (which was discussed in this Blog here and here and by the IPKat here) were orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works which §514 removed from the public domain. The chief plaintiff was Lawrence Golan, an orchestra conductor from the University of Denver, who argued that Congress exceeded its authority when it passed a law which took certain works by foreign artists out of the public domain and put them under copyright. Golan, who conducts a number of small orchestras, had been able to perform works such as Prokofiev's Peter and the Wolf for free before §514 became the law. 

Golan argued that §514 violated a basic principle of copyright, this being that works cannot be taken out of the public domain once they are there. He also claimed that the proviso was tantamount to a restriction of his free speech, and was thus contrary to the First Amendment.

This is the background to the case before it reached the Supreme Court. At first, the District Court had granted the Attorney General’s motion for summary judgment. Affirming, in part, the Tenth Circuit had agreed that Congress had not offended the Copyright Clause, but concluded that §514 required further First Amendment inspection in light of Eldred v Ashcroft. On remand, the District Court had granted summary judgment to the petitioners on the First Amendment claim, holding that §514’s constriction of the public domain was not justified by any of the asserted federal interests. The Tenth Circuit had then reversed, ruling that §514 was narrowly tailored to fit the important government aim of protecting US copyright holders’ interests abroad. 

Justice Ruth Bader Ginsburg

The opinion of the US Supreme Court was delivered by Justice Ginsburg (Justice Kagan did not take part in the ruling, while Justices Breyer and Alito dissented).

Justice Ginsburg first explained the background to the URAA.

The US had joined the Berne Convention in 1989. Article 18 of Berne requires countries to protect the works of other member states unless the works’copyright term has expired in either the country where protection is claimed or the country of origin. A different system of transnational copyright protection had long prevailed in the US. Throughout most of the 20th century - says the Supreme Court - the only foreign authors eligible for Copyright Act protection were those whose countries granted reciprocal rights to US authors and whose works were printed in the US. Despite Article 18, when the US joined Berne in 1989, it did not protect any foreign works lodged in the US public domain, many of them being works never protected there. 

In 1994, however, the TRIPS Agreement mandated implementation of Berne’s first 21 articles, on pain of enforcement by the WTO. 

In response, Congress applied the term of protection available to US works to preexisting works from Berne member countries.  

§514 URAA grants copyright protection to works protected in their country of origin, but lacking protection in the United States for any of three reasons: 

a- the US did not protect works from the country of origin at the time of publication; 

b- the US did not protect sound recordings fixed before 1972; or 

c- the author had not complied with certain US statutory formalities.

This said, the US Supreme Court held that the text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. In Eldred, in fact, the Court upheld the Copyright Term Extension Act (CTEA), which extended by 20 years the terms of existing copyrights. The text of the Copyright Clause, observed the Court, contains no command that a time prescription, once set, becomes forever fixed or inalterable.

Furthermore, historical practice corroborates the Court’s reading of the Copyright Clause to permit the protection of previously unprotected works. 

In addition, contrary to what argued by the petitioners, §514 does not fail to “promote the Progress of Science” as contemplated by the initial words of the Copyright Clause. This is because the creation of new works is not the sole way Congress may promote “Science,” ie, knowledge and learning. Rather the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” (Eldred, at 222.) 

I want my royalties!

Nothing in the text or history of the Copyright Clause, moreover, confines the Progress of Science exclusively to incentives for creation. Also inducing the dissemination of existing works is said to be an appropriate means to promote science.  

Considered against this backdrop, §514 falls comfortably within Congress’ Copyright Clause authority, affirms the Supreme Court. 

Coming the claim concerning the First Amendment, Justice Ginsburg observed that this does not inhibit the restoration authorised by §514. The path-making Eldred decision is instructive in this respect, wrote the Justice.
There, the Court held that the CTEA’s enlargement of a copyright’s duration did not offend the First Amendment’s freedom of expression guarantee. Recognising that some restriction on expression is the inherent and intended effect of every grant of copyright, the Court observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used, but also as an “engine of free expression.” The traditional contours of copyright protection, ie, the idea/expression dichotomy and the fair use defence, moreover, serve as built-in First Amendment accommodations. 

§514 leaves undisturbed the idea/expression distinction and the fair use defence.  

The petitioners had also claimed that First Amendment interests of a higher order are at stake because they enjoyed vested rights in works that had already entered the public domain.

However nothing, said the Court, warrants exceptional First Amendment solicitude for copyright works which were once in the public domain.  

Congress has several times adjusted copyright law to protect new categories of works as well as works previously in the public domain.  §514, moreover, does not impose a blanket prohibition on public access. The question was whether would-be users of certain foreign works must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of those works.  By fully implementing Berne, Congress ensured that these works, like domestic and most other foreign works, would be governed by the same legal regime. So, §514 simply placed foreign works in the position they would have occupied if the current copyright regime had been in effect when those works were created and first published.