October 26, 2015

City’s Legislative Body Has No Protectable Copyright Interest in Video Recordings of Public Meetings

BY: Cathie Fields, Lisa Allred

Meetings of school boards, city councils, county boards of supervisors, community college boards and other “legislative bodies” are open to the public, with minor exceptions, under the Ralph M. Brown Act. Members of the public have access to these meetings and may use them as a forum to criticize the work of the legislative bodies. The law protects this type of criticism as a constitutional right.  But what happens when a member of the public posts video clips of a public meeting on the Internet, complete with commentary? A court recently answered this question: Essentially, nothing.

Joseph Teixeira, a longtime critic of the mayor and officials of the City of Inglewood, posted on his website video footage of city council meetings along with his criticisms. The City sued Teixeira for copyright infringement of the video recordings of public city council meetings. On August 20, 2015, the federal court for the Central District of California granted Teixeira’s motion to dismiss the City’s copyright infringement lawsuit.

The Court agreed with Teixeira’s arguments that: (1) California law bars the City from claiming and asserting a copyright claim in the videos of its City Council meetings; and (2) even if the City had an enforceable copyright interest in the videos, the Copyright Act’s fair use protections applied to Teixeira’s use of the videos. First, the court relied on County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301 to find that absent an express grant of authority to obtain and hold copyrights, public entities cannot claim copyright protections for works they create, even if those works would otherwise fall within the scope of federal copyright protection. The City could not identify an affirmative grant of authority to claim copyright protection for its video recordings.

It is important to note that this first holding addresses copyrights by a city’s legislative body.  By contrast, school boards, county boards of education, and community college boards are authorized to secure copyrights in the name of the district or county board to all copyrightable works developed by the district or board (see Education Code sections 1044, 35170, and 81459). Therefore, this portion of the holding would not apply to school boards, county boards of education, or community college boards since they have an affirmative grant of authority to claim copyright protection.

By contrast, the second part of the court’s decision would apply to all legislative bodies that are subject to the Brown Act, including school boards, county boards of education and community college district boards. Specifically, the court found that even if the videos were copyrightable, Teixeira’s use of the council meeting videos was “fair use.” The videos were “transformative” works used for the purpose of criticism and commentary on matters of public concern. Additionally, the videos were fundamentally factual and incorporated only small segments of the city council meetings. Most important, Teixeira’s videos did not compete with the City’s own distribution of the videos because under the California Public Records Act, the videos must be made available to any person upon payment of the direct costs of duplication. Thus, the City had no way to profit from distributing the videos or to recoup the costs of creating the recordings.

The Public Records Act applies equally to school and community college district boards. Despite these boards’ authority to secure copyrights, recordings of public meetings may be used, copied, and even posted online, for purposes of criticism and commentary (i.e., fair use) without infringing a district’s copyright.

As the court noted, California law strongly favors public access to public materials and places significant limits on how public entities may restrict access to such materials. In light of all these factors, the City could not allege copyright infringement against a member of the public over the use of recordings of public meetings.

 

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Attorney Bio(s)

cfields

Cathie Fields

Partner

949-453-4260

cfields@aalrr.com

Cathie Fields is a partner in the Irvine office of Atkinson, Andelson, Loya, Ruud & Romo. Since 1997, Ms. Fields has represented school districts, community college districts, and other educational agencies in labor and employment matters, general education issues, and governance matters. She advises clients on employment issues ranging from hiring practices, preemployment inquiries and testing, and disability/accommodation concerns to disciplinary actions, certificated and classified layoffs, leaves of absence, contract drafting and interpretation, and wage and hour law. Additionally, she frequently advises administrators and governing boards regarding public records obligations, board meeting agendas, Brown Act compliance, and conflict-of-interest issues.

full bio

Lisa Allred

Lisa Allred

Partner

916.923.1200

lallred@aalrr.com

Lisa R. Allred is a partner in the Sacramento office of Atkinson, Andelson, Loya, Ruud & Romo. Ms. Allred specializes in education law, representing school districts, colleges, and universities, and applying her expertise in business, real estate, personnel, public works, technology, and intellectual property law. Ms. Allred began her legal career as an Assistant Attorney General for the State of Washington at the Washington State University Division, where she practiced all aspects of higher education law. Ms. Allred has lectured extensively before school and college associations on various education law topics.

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