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Federal governmental entities (ex. US Copyright Office) cannot own copyrights per law. But, that does not mean the same is true for state and local entities such as city council, or state legislative bodies. Can they own and enforce copyrights of its videos of its meetings, or otherwise? This blog will hopefully shed some light under California law.
Case on Point
In City of Inglewood v. Teixeira, 2015 U.S. Dist. LEXIS 114539, *6-15 the court provided a good general road map discussing whether government entitles can assert copyrights and file federal lawsuits for infringement.
In this action, the City makes two basic allegations. First, that it enjoys a copyright interest in the video recordings it makes of open public meetings of the Inglewood City Council. Second, that Teixeira has violated the City's copyright by using portions of these videos in making his own videos that criticize the City and its elected officials (the "Teixeira Videos").
The City alleges that it is the valid copyright owner of video recordings, including six of Inglewood Council meetings from 2011 to 2013 ("the "Inglewood City Council Videos") for which it has submitted applications for copyright registration by the Register of Copyrights. (Compl. ¶ 14, Ex. A).
Teixeira is a resident of Inglewood, California. (Compl. ¶ 11). He operates a website, Inglewoodwatchdog.wix.com [*7] , and posts videos on YouTube as Dehol Trouth. (Id. ¶¶ 11, 19). The City alleges that Teixeira has willfully and intentionally used infringing copies of the City Council Videos in question and distributed them in online media, thereby violating the City's exclusive reproduction and distribution rights.
In his Motion, Teixeira makes two arguments as to why the City's action should be dismissed. First, under California law, the City may not claim and assert a copyright interest in the City Council Videos. Second, even if the City had an enforceable copyright interest in the videos, the Teixeira Videos fall squarely within the fair use protections of § 107 of the Copyright Act.
For the reasons explained below, the Court agrees with both of Teixeira's arguments.
A. Copyright Protection Over City Council Videos
Teixeira's first argument is that California law bars the City from claiming and asserting a copyright claim in the videos of its City Council meetings.
The scope of copyright protection is governed by federal law. The Copyright Act bars protection for works created by the federal government. 17 U.S.C. § 105. However, whether state and local governments can claim copyright [*8] protection is governed by state law. See County of Suffolk v. First American Real Estate Solutions 261 F.3d 179, 188 (2d Cir. 2001) ("Thus, although a state and its subdivisions may own a copyright as a matter of copyright law, it may be that Suffolk County is not permitted to do so in this instance. The question becomes whether New York's Legislature, by enacting FOIL, has ceded Suffolk County's copyright."); Building Officials Code Adm'rs, Inc. v. Code Tech, Inc., 628 F.2d 730, 735-36 (1st Cir. 2009) ("Works of state governments are therefore left available for copyright protection by the state or the individual author, depending on state law and policy, and 'subject to exceptions dictated by public policy with respect to such publications as statutes and judicial opinions.'") (quoting Alan Latman, The Copyright Law 43 (5th ed. 1979)); 2 William F. Patry, Patry on Copyright § 4:81 (2015).
California law establishes a strong presumption in favor of public access to public materials and places significant limits on how public entities may restrict access to such materials. See California Public Records Act ("CPRA"), Cal. Gov. Code § 6250 et seq.; Filarsky v. Superior Court, 28 Cal. 4th 419, 425-426, 121 Cal. Rptr. 2d 844, 49 P.3d 194 (2002) (the CPRA "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").
The only published authority on the question of the ability of California public entities [*9] to assert copyright over works they produce holds that the City may not assert a copyright interest in the City Council Videos. In County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009), the California Court of Appeal addressed the county's denial of a request for a geographic information system base map it had created. The court carefully considered California law, including the CPRA and the state's policies towards openness and accessibility of the writing of public officials and agencies. Id. at 1320 (citing Cal. Const. art. 1 § 3(b)(1) (the state constitution explicitly recognizes the "right of access to information concerning the conduct of the people's business" and to provide that "the writings of public officials and agencies shall be open to public scrutiny.") The court evaluated the statutory language of the CPRA and held in part that in the absence of "an affirmative grant of authority to obtain and hold copyrights" a California public entity may not do so. Id. at 1333 (emphasis in original).
The City identifies no affirmative grant of authority that permits it to obtain and assert a copyright for the City Council Videos. Instead, the City presents three arguments in response. First, it argues that the Supremacy Clause means that the federal basis of copyright law overrides any limits on the City's ability to obtain copyright protection and the court of appeal in County of Santa Clara improperly interpreted the federal Copyright Act to be limited by California law. Second, the works are registerable, much like similar works registered by other municipalities and so it may bring suit for copyright infringement. Third, the City states that County of Santa Clara is non-precedential and so should not be considered by this Court.
None of the City's arguments is persuasive. The City's Supremacy Clause argument is flawed because every authority to address the issue has held that a State can choose whether or not to hold and assert copyright over its works and those of its subdivisions. The effect of the Supremacy Clause is that a state may not alter the scope of copyright protection. The Copyright Act, however, does not require a state or a person to claim and assert copyright protection for works created. See In re Aimster Copyright Litigation, 334 F.3d 643, 652 (7th Cir. 2003) (recognizing that artists may choose not to copyright their works in order to broaden their audience). Therefore, the Supremacy Claus does not forbid a state from choosing whether or not to claim copyright protection. Indeed, it is probable that the Copyright Act could not require such an act from a state under the Constitution. See New York v. United States, 505 U.S. 144, 166, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992) ("even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts").
The case the City cites in support of its position is inapposite. In Sperry v. State of Florida ex rel. Florida Bar, 373 U.S. 379, 83 S. Ct. 1322, 10 L. Ed. 2d 428, 1963 Dec. Comm'r Pat. 211 (1963), the Supreme Court held that Florida could not prohibit a lawyer from practicing before the United States Patent Office when authorized by federal law, even though the plaintiff lacked a Florida law license. Sperry, however, related to a state's attempt to abrogate federally authorized activity by a private individual. This case does not involve a private individual, but a subdivision of the state of California. California may choose whether or not to exercise its rights under federal law and may restrict its subdivisions consistent with that policy.
At the hearing, the City argued that the County of Santa Clara decision was flawed because the court held that state law prevented a California political entity from "obtaining and holding" a copyright. However, § 102 states that a copyright is established at the moment of fixation. Therefore, the City argued, the court based its decision on [*12] a misunderstanding of federal law, which establishes the copyright in the City at the moment of its creation, and California law may not overrule federal law on this point.
The argument is unpersuasive. While the City may be correct that California law cannot prevent the creation and lodging of a copyright in an entity contrary to federal law, the Court does not understand the County of Santa Clara court to be doing that. It is true that the court was perhaps inartful in its precise choice of language. However, that does not alter what this Court sees as the court's ultimate holding, that absent particular statutorily provided exceptions, California public entities are prohibited from enforcing any copyrights they may acquire as a matter of federal law. Whether in the eyes of federal law the City holds a copyright in the videos is irrelevant in the face of the State's decision that its entities may not act to enforce that copyright.
The registration of the works in question, and other works made by municipalities, as copyrighted is also irrelevant:
First, registrations are not conclusive evidence of copyright ability. See Techniques, Inc. v. Rohn, 592 F. Supp. 1195, 1197 (S.D.N.Y. 1984) ("It is true that registration provides only prima facie evidence of validity. A Registration's validity is subject to judicial review and may be attacked by a defendant in an infringement action."). The registration also has no relevance as to California law's position on whether the City may exert the copyright.
Second, even if relevant to the Court's analysis, the other examples presented by the City are simply not analogous. The works are either books produced by various California cities, or software programs, including one for the City itself.
The only copyright lawsuit brought by a California entity that the City can identify is one it brought itself to stop copyright infringement by the City of Chicago in traffic software it had developed. City of Inglewood v. City of Chicago, CV-02-04594 DT (C.D. Cal.). However, the software in question falls within the California legislature's express grant of authority to assert copyright protections for software. Cal. Gov. Code § 6254.9; County of Santa Clara, 170 Cal. App. 4th at 1334 ("By the express terms of section 6254.9 [of the CPRA], the Legislature has demonstrated its intent to acknowledge copyright protection for software only").
The City's final assertion that County of Santa Clara is non-precedential is also wholly without support. (Opp. at 17). As an opinion of the California Court of [*14] Appeal, this court is compelled to follow it, absent convincing evidence that the California Supreme Court would rule otherwise. "In deciding an issue of state law, when 'there is relevant precedent from the state's intermediate appellate court, the federal court must follow the state intermediate appellate court decision unless the federal court finds convincing evidence that the state's supreme court likely would not follow it.'" Hayes v. County of San Diego, 658 F.3d 867, 870 (9th Cir. 2011) (holding that certification of question was warranted as to whether, under California negligence law, sheriff's deputies owed duty of care to suicidal person when preparing, approaching, and performing welfare check on person). Indeed, the Ninth Circuit has explained that "where there is no convincing evidence that the state supreme court would decide differently, a federal court is obligated to follow the decisions of the state's intermediate appellate courts." Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001) (quoting Lewis v. Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996)) (upholding dismissal of claim by prospective real property [**1386] purchaser because claim of lost profits damages was too speculative and no other damages were alleged).
The City presents virtually no reasons, and certainly no convincing reasons, that the California Supreme Court would not follow [*15] County of Santa Clara. Indeed, the supreme court denied a request to de-publish the decision. County of Santa Clara v. Superior Court, 2009 Cal. LEXIS 4728 (May 13, 2009). The supreme court has also cited County of Santa Clara in another case favoring disclosure of data created by a public entity. Sierra Club v. Superior Court, 57 Cal. 4th 157, 176, 158 Cal. Rptr. 3d 639, 302 P.3d 1026 (2013) (holding that parcel map database was not within the software exception of CPRA and had to be provided to public on request).
The Court must therefore follow County of Santa Clara. The decision is clear that a California public entity may not claim copyright protection for a work it has created even if it falls within the scope of federal copyright protection. Id. at 1333. The only exceptions are the statutory express grants of authority, such as for software in the CPRA, or for educational material under the California Education Code section 1044, or for materials produced by the Department of Toxic Substances Control under California Health and Safety Code section 25201.11(a). Id. The City identifies no such grant of authority for videos such as these.
Accordingly, the Court GRANTS the Motion because the City may not assert a copyright claim in the City Council Videos.
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