I wrote
last month about the case of City of
Inglewood v. Joseph Teixeira, where the city of Inglewood in California
filed suit against one of its residents who had used parts of videos of its council
meetings to create his own videos criticizing decisions made by the council or
some of its members, and posted them online under the name “Dehol Truth.”
On August 20, 2015, Judge Michael W. Fitzgerald granted
Defendant’s motion to dismiss, finding that Plaintiff was barred as a matter of
law from claiming that the videos were infringing its copyright, and that even
if Plaintiff could claim copyright infringement, Defendant’s use would be fair.
The City May Not
Assert Copyright Protection Over City Council Videos
While Section 105 of the
Copyright Act bars the federal government from protecting any of its works
by copyright, it applies only to the U.S. government, and the issue of
copyright protection for works of state and local government is governed by
state law. Judge Fitzgerald found that “California
law establishes a strong presumption in favor of public access to public
materials and places,”citing as example the California
Public Records Act (CPRA) which, as noted by the Supreme Court of
California in Filarsky v. Superior Court, was
enacted “for the purpose of increasing
freedom of information by giving members of the public access to information in
the possession of public agencies.”
Judge Fitzgerald was persuaded that the California court of
appeals County of Santa Clara v. Superior Court
case applied. In this case, the court found that a California public entity may
not assert copyright in one of its works, in the absence of “an affirmative grant of authority to obtain
and hold copyrights.”
Even If They Would be
Protected by Copyright, the Use of the Videos Would be Fair
Judge Fitzgerald found that each of the four fair use
factors were in favor of Defendants.
The first factor, purpose and character of use, was in its
favor. Section 107
of the Copyright Act gives criticism or comment as examples of fair use of a
work protected by copyright. For Judge Fitzgerald, Defendant’s purpose in
creating his videos “falls directly
within two of the categories explicitly referenced in §107: criticism and
commentary.”
While Plaintiff had argued that Defendant had merely
republished council meeting videos, Judge Fitzgerald found the videos at stake to
be “highly transformative,” explaining
that “[t]he clips are carefully chosen and heavily edited” and that Defendant “juxtaposes
them with other materials, puts his own commentary over and around them, and
used specific clips to underscore and support the points he makes in his videos.”
For Judge Fitzgerald, Defendant’s videos “constitute core First Amendment protected
speech,” citing several cases, such as National Rifle Ass’n of America v. Handgun
Control Federation of Ohio and
Consumers Union of United States, Inc. v.
Gen.Signal Corp., to support his well-settled assertion that “[t]he
fair use doctrine generally provides a greater scope of protection when the
works involve matters of public concerns.”
Even if the original videos would be protected by copyright,
their “barely creative nature” would make
this protection very narrow, and thus the second fair use factor, the nature of
the original work, was also in Defendant’s favor. As for the third factor, the
amount and substantiality of the portion used, Judge Fitzgerald noted that
Defendant had used only parts of the original works, and that he had added each
time his own written or oral commentary at the bottom of the screen. As such,
the third factor “strongly favors a
finding of fair use.” As for the fourth and last factor, the effect of the
use on the potential market, it also “strongly
favors” Defendant, as [Surprise Surprise!] “there is no market for the City Council Videos and the accused works
are not a substitute for the original works.”
This decision leaves, however, one question open: why, oh
why, did the City of Inglewood think it would be judicious to file such a
suit?
