Feature

Wake of the Flood—Public Records, Copyright, and Fair Use in Documentary Film

Walter G. Lehmann

©2017. Published in Landslide, Vol. 9, No. 6, July/August 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Without freedom of speech I might be in the swamp.1

A storm is brewing in Iowa over photos and videos of a historic flood taken by employees of the University of Iowa (University). The Iowa Public Information Board (IPIB) is considering whether the University’s refusal to share these materials with a documentary filmmaker—a violation of Iowa’s public records law—is excused by federal copyright law. The case illustrates an intersection between state public records laws and the federal Copyright Act that is widely misunderstood and often mishandled. This is the result of confusing access to public records with the right to use materials protected by copyright. In the eye of the storm is the copyright doctrine of “fair use”—an increasingly important exception to copyright that protects the First Amendment right to freedom of expression. By asserting copyright preemption, the University is seeking to prevent access to materials that would otherwise be available through public records laws—materials that, if publicly available, can be used without permission from the copyright owner if the use is a “fair use.” The impact of the University’s position on the filmmaker’s freedom of expression raises serious red flags. This article will attempt to shine some light on this subject, and will provide some practical advice for using public records materials in the documentary film context.

The Dispute

In early 2016, an Iowa filmmaker contacted the University to request a license to use photos and footage taken by University employees during a 2008 flood. The filmmaker wanted to use the materials in a documentary film about the historic flood, which devastated major portions of eastern Iowa. When the parties were unable to agree on the terms of the license, the filmmaker filed a public records request with the University in accordance with the Iowa public records law. The University denied the records release request, asserting that the materials were protected by federal copyright law under which the University has the right to control their dissemination and use.

The filmmaker then contacted the IPIB for informal assistance in obtaining release of the materials. In response to an inquiry from the IPIB, the Iowa Board of Regents, which oversees the university system, issued a legal opinion asserting that federal copyright law preempts state public records law anytime a government body decides to assert copyright protection. Unable to obtain release of the materials, the filmmaker filed a formal complaint with the IPIB. After attempts to adopt an informal resolution failed, the IPIB initiated a formal investigation and issued a probable cause report.2 The investigation revealed that, although the parties were willing to negotiate a license for use of the materials, the filmmaker was unwilling to sign any nondisclosure document that would restrict his use of the materials. The IPIB’s probable cause report concluded that public records were not released as required by Iowa law, and recommended that the IPIB evaluate the Iowa public records law and federal copyright law to determine whether either or both laws created a defense to an otherwise required release of public records under the Iowa public records law.3

The Law

All 50 states and the federal government have public records laws that allow members of the public4 to obtain documents and other public records. Restrictions on access to public records vary by state. In Iowa, access to public records is governed by the Iowa Open Records Act (IORA). The IORA broadly defines “public records” as all documents and other records “of or belonging to this state” or to any political subdivision or other organization “supported in whole or in part with property tax revenue.”5 Unless the records are deemed confidential,6 the IORA allows for the unrestricted access and copying of public records. The IORA is intended to ensure transparency and accountability.7 To that end, the statute provides the public “the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.”8

The federal Copyright Act provides copyright protection for “original works of authorship fixed in any tangible medium of expression.”9 The owner of a work entitled to copyright protection has the exclusive right to reproduce, distribute, and publicly perform the copyrighted work, and to create derivative works. The creator of a work usually is the copyright owner. However, if the work was made by an employee acting within the scope of his or her employment, the employer is considered the copyright owner. And if the work is created pursuant to a written “work for hire” agreement, the person or entity that commissioned the work is deemed the copyright owner.10

The Copyright Act specifically states that works created by an officer or employee of the United States government as part of his or her duties are in the public domain and not eligible for copyright protection.11 However, the Copyright Act does not specifically prohibit copyright of works produced by other governmental entities.12 The courts have recognized copyrights in public records materials created for governmental entities by third-party contractors.13 And the courts have recognized that states and related public entities are entitled to copyright protection in works they and their employees create.14 As a result, with the possible exception of certain legislation and judicial decisions,15 state and local governments may assert copyright protection in materials that may also be subject to state public records laws, if the law of the jurisdiction allows it.16 In some states, a governmental entity may not have copyright protection in its works without a statutory delegation.17

The possibility of copyright ownership in materials otherwise subject to state public records laws has generated considerable debate over how to reconcile these two conflicting concepts—exclusive control over the dissemination of copyrighted materials versus the right of unfettered public access to public records. It could be argued that in a state with a constitutional right of access to public records, works that are public records should be considered in the public domain, like those of their federal counterparts. The state has effectively dedicated such works to the public domain, irrespective of their copyright status. Works that are in the public domain are not copyrightable and may be freely used by any member of the public. If public records are in the public domain, they would be precluded from copyright protection. Another approach is to view state public records statutes as proactive open licensing agreements (much like Creative Commons licenses).18 That is, state public records laws in effect grant permission in advance to use certain materials that might otherwise be subject to copyright protection. It is also possible to look to the Copyright Act itself—and the statutory exception of fair use—to resolve this conflict.

There are several exceptions to copyright protection, the most important of which is the doctrine of fair use. Fair use recognizes that the exclusive rights granted by the Copyright Act to control the use and distribution of copyrighted material are limited by the First Amendment right to freedom of expression.19 Fundamentally, fair use is a safety valve that seeks to balance these two important constitutional interests and ensure that the Copyright Act is constitutional. Fair use provides that the monopoly granted by copyright law may be enjoyed so long as its exercise does not unreasonably impair another’s freedom of expression.

While traditionally viewed as an affirmative defense to a claim of copyright infringement, recent case law suggests that fair use is an expressly authorized right.20 Section 107 of the Copyright Act states that the unpermitted use of a work protected by copyright “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”21 The statute sets out a four-factor test to determine whether the use of a work in a particular case can be deemed a “fair use.”22 Unpublished works may be subject to fair use.23 A use may be fair use even if the copyright owner has affirmatively refused permission to use the work.24 The doctrine of fair use has played a role in cases involving state public records materials.25

Analysis

As is customary in documentary film production, the filmmaker initially contacted the University about licensing its photos and videos of the flood for use in his documentary film. (This is often done in an abundance of caution, and not, as we shall see, as an admission of the need for permission.) Only after the parties were unable to agree on the terms of the license did the filmmaker file a public records request to gain access to the materials. In subsequent negotiations, the University refused to release the materials unless the filmmaker agreed to sign a nondisclosure agreement. Presumably the nondisclosure agreement would contractually restrict the filmmaker’s use of the materials in the documentary film.

The University has asserted that, as a copyright owner under the Copyright Act, it has the exclusive right to determine when and how its copyrightable work is copied and distributed, and that this right supersedes the state public records law requirement to provide for the unrestricted public access to and copying of public records.26 Neither the classification of the materials as “public records” nor the University’s assertion that it owns copyright in the materials is in dispute.

The heart of the dispute could not be simpler: Must the University comply with the Iowa public records law and provide the filmmaker with a copy of the requested materials? The answer should be a simple “yes.” After all, there is no question that the materials are public records subject to the state’s public records law. So why is the University hesitant to provide public records materials to the filmmaker? The subtext of the University’s legal argument has everything to do with access. The University knows that if the filmmaker can obtain copies of the flood photos and videos through the public records law, he will be able to use the materials in his documentary under the doctrine of fair use and will not have to license them from the University.

What makes this situation somewhat unusual is that the materials have not previously been released—in the parlance of copyright law, the materials are “unpublished.” If the materials had already been “published”—that is, were already available publicly in a tangible form—there would likely be no dispute because the filmmaker would be able to use the materials in his documentary so long as their use is considered fair use. In essence, the University is seeking to prevent the filmmaker from being able to rely on fair use. Put another way, the practical effect of the University’s copyright preemption argument is to effectively curtail the filmmaker’s First Amendment right to freedom of expression.

Documentary films often rely heavily on preexisting materials, many of which are protected by copyright. While obtaining permission from the copyright owner is always the best practice, this is not always possible. Often the identity of the copyright owner is unknown. Many times the copyright owner cannot be contacted. Other times the copyright owner refuses to respond to a request for permission. In some cases, the copyright owner refuses to give permission, demands excessive licensing fees, or seeks to impose unrealistic restrictions on use of the materials.

When a documentary filmmaker is unable to obtain permission to use material that is presumptively protected by copyright, he or she must decide if the material is essential to the story being told or the point being made in the documentary. For example, the material may be the only existing record of a historic event. If the material is essential to the historical narrative and the filmmaker is unable to obtain a license to use the material, the filmmaker may decide that the unpermitted use is warranted. In that case, the filmmaker may determine (often in consultation with an experienced copyright attorney) that reliance on “fair use” is justified.27 Use of preexisting material in a documentary is often—but not always—fair use. In fact, at least one decision suggests that in the documentary context, there is a presumption of fair use.28

In short, if the filmmaker in this case can obtain copies of the flood photos and videos pursuant to the public records law, under the Copyright Act he will be entitled to use the materials without copyright permission if he does so in a way that constitutes fair use. The University could not prevent this use. But it can try to prevent access, so what the University is seeking to do is to prevent the filmmaker from getting copies of the materials. (Of course one wonders why the University is so concerned about the use of these materials in a documentary about the historic flood—after all it would seem to be in the public interest for people to study and learn about such events.)

While it is true that under the Copyright Act the copyright owner has the exclusive right to determine when a work is published, state public records laws in effect require governmental agencies to publish, or allow members of the public to publish, state-owned works. The IORA, for example, specifically allows the public to copy and “to publish or otherwise disseminate” public records. Through the IORA, Iowa has determined that governmental agencies under its jurisdiction will publish or allow the public to publish any materials deemed to be public records.

In this respect, there is no conflict between the Copyright Act and the IORA. Except for materials that are deemed “confidential,” the IORA does not place any restrictions on access and copying of public records. In this case, the University’s insistence that the filmmaker sign a nondisclosure agreement is misplaced. Nothing in the IORA gives the University or any other governmental body subject to that law the right to impose restrictions on access to or copying of Iowa public records. Nor does the IORA limit or curtail the University’s rights as a copyright owner under the Copyright Act.

Minnesota’s attorney general was asked to address a similar situation—that is, whether a state agency could lawfully require a person seeking to distribute and sell copies of public records to enter into a license governing the subsequent use of those records.29 The case involved maps and other data developed by the Minnesota Department of Natural Resources (MNDNR) staff concerning Cass Lake muskellunge.30 The requester was told that while he was free to view and copy the requested data, his right to use the data was subject to MNDNR’s copyright under the Copyright Act, that all copies of the data would carry MNDNR’s copyright notice, and that the requester could not publish or otherwise use the data for purposes other than personal ones unless he obtained a license from the MNDNR. It was this last condition—“personal use”—that Minnesota’s attorney general found problematic.

Minnesota’s attorney general concluded that while Minnesota’s public records law does not permit state agencies to withhold access to public records, a state agency may condition use to the extent of its rights under the Copyright Act. According to the attorney general, if a public record qualifies for copyright protection under the federal copyright law, a state agency “may use a license to restrict or condition an individual’s authority to make additional copies, to prepare derivative works based on the copyrighted work, or to distribute copies to the public by sale or other transfer of ownership, or by rental, lease, or lending” as provided by the Copyright Act, but it “may not restrict or condition ‘fair use’ of the public record for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.”31 The attorney general noted that while state agencies may use licensing agreements to manage the subsequent sale or dissemination of taxpayer-funded public records for commercial purposes, “we see no basis for concluding that state agencies have any authority to use licensing agreements to protect themselves from criticism, comment, or news reporting, to stifle research, teaching or scholarship, or to in any way restrict the ‘fair use’ of public government data.”32 In other words, the attorney general recognized the First Amendment right to freedom of expression embodied in the fair use exception to copyright protection.

Practice Tips

Based on my experience representing documentary film producers, the University of Iowa situation is unusual. However, given the financial and other pressures faced by public universities and other public institutions that create valuable intellectual property, it may be the wake of a flood. In my experience, documentary filmmakers typically encounter the opposite of the problem faced by the Iowa filmmaker in this case.

When documentary filmmakers approach governmental entities for permission to use materials that are presumably under copyright, such as police crime scene photographs, 911 sound recordings, and interrogation videos, they are routinely told that the requested materials are “public records” and that the police department or other governmental agency does not own copyright in the materials.33 Sometimes they are told that because the materials are public records, those materials are in the public domain. Often there is confusion about the legal meaning of these two very distinct terms. Although public records may be in the public domain in some jurisdictions (see the discussion above), quite often that is not the case—as has hopefully been shown, materials that are public records may also be subject to copyright law (and may not be in the public domain). When confronted with these misunderstandings, the strategy for dealing with these situations relies on the fair use doctrine.

When a governmental agency refuses to give permission to use public records, filmmakers should document the correspondence, including the agency’s refusal to assert copyright ownership or grant permission, and ideally the reasoning behind that positon. Filmmakers should use the material in the documentary in a way that will clearly constitute fair use, in the unlikely event that the presumptive copyright owner later asserts its copyright in the material. As with all other “fair use” material, the use of the material in the specific context of the documentary should be reviewed, and a “fair use” legal opinion prepared for the filmmaker’s rights clearance file.34

Of course, this approach is only possible when a filmmaker has access to copies of the public records materials he or she seeks to use. If the approach taken by the University—to refuse to provide copies until the terms of a license agreement are negotiated—becomes the norm, this will have huge implications for documentary filmmakers and others seeking to use materials created by governmental agencies other than the federal government. This approach would essentially deprive filmmakers of the ability to exercise their First Amendment freedom of expression by precluding their ability to avail themselves of the fair use exception to copyright. The disturbing implications of this position should be obvious.

Conclusion

Given the growing appreciation for the value of intellectual property in general and of copyrights in particular, it is not surprising that state governmental entities, particularly state-run colleges and universities, are becoming more aware of the value of copyright ownership and beginning to assert copyright in the works created by their employees. However, where public records laws provide for unfettered access to public records, efforts to restrict access based on blanket assertions of federal copyright preemption are misplaced. There is no inherent conflict between the Copyright Act and state public records laws. The doctrine of fair use provides an important exception to copyright, one that is fundamental to news reporting and to academic scholarship and protects the right to freedom of expression. Efforts to curtail this right by preventing access to otherwise publicly available materials should be viewed with skepticism.

Endnotes

1. BOB DYLAN, MOTORPSYCHO NIGHTMARE (Warner Bros. 1964).

2. IPIB Probable Cause Report 16FC:0075 (Jan. 9, 2017).

3. Id.

4. In some states, access to public records is restricted to state citizens only. See McBurney v. Young, 133 S. Ct. 1709 (2013) (upholding provision in Virginia’s Freedom of Information Act allowing citizens, but not noncitizens, the right to inspect and copy all state public records).

5. Iowa Code § 22.1(3).

6. Id. § 22.7.

7. “The purpose of the [IORA] is to open the doors of government to public scrutiny [and] to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act.” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 459–60 (Iowa 2013).

8. Iowa Code § 22.2.

9. 17 U.S.C. § 102(a).

10. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).

11. 17 U.S.C. § 105.

12. See, e.g., Nat’l Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34, 35 (N.D. Ill. 1980) (“The [Copyright Act] is not restricted to private parties and there is no reason to believe that such a restriction should be upheld. In fact, the opposite inference is required when only one specific governmental entity, the United States of America, is excluded from the protection of the Act.”), aff’d, 692 F.2d 478 (7th Cir. 1982).

13. See, e.g., Pictometry Int’l Corp. v. Freedom of Info. Comm’n, 59 A.3d 172 (Conn. 2013) (concluding that aerial photographs, software, and metadata licensed to governmental agency and available to public under state public records laws are protected by copyright).

14. See Cty. of Suffolk v. First Am. Real Estate Sols., 261 F.3d 179, 187 (2d Cir. 2001); Bldg. Officials & Code Adm’rs v. Code Tech., Inc., 628 F.2d 730, 735–36 (1st Cir. 1980); accord Weisberg v. U.S. Dep’t of Justice, 631 F.2d 824 (D.C. Cir. 1980) (holding that records do not lose copyright protection simply because they become publicly available).

15. The U.S. Copyright Office in the Compendium of U.S. Copyright Office Practices states that legislative enactments, judicial opinions, and administrative rulings, whether federal or state, are ineligible for federal copyright protection for public policy reasons. However legal briefs prepared by private attorneys may be protected by copyright. See Newegg, Inc. v. Ezra Sutton, P.A., 120 U.S.P.Q.2d 1111 (C.D. Cal. 2016); cf. White v. W. Publ’g Corp., 29 F. Supp. 3d 396 (S.D.N.Y. 2014) (finding legal briefs submitted to a public database and downloaded and added to a proprietary database protected by copyright but “fair use”).

16. See Microdecisions, Inc. v. Skinner, 889 So. 2d 871 (Fla. Dist. Ct. App. 2004). For a list of state laws and legal sources affecting the copyright status of public records, see http://copyright.lib.harvard.edu/states.

17. For example, in Florida an agency may not copyright its works without statutory authority. Fla. Op. Att’y Gen. 2000-13 (2000). In Florida, access to public records is protected by both the state’s constitution and by its public records statute. See Microdecisions, 889 So. 2d 871.

18. See, e.g., Rebekah Bradway, Blurred Boundaries: When Copyright and FOIA Collide, Digital Media L. Project (Aug. 23, 2013), http://www.dmlp.org/blog/2013/blurred-boundaries-when-copyright-and-foia-collide.

19. Fair use is a means of balancing the public’s interest in the development of arts, science, and history with the copyright owner’s exclusive rights. Encyclopaedia Britannica Educ. Corp. v. Crooks, 447 F. Supp. 243 (W.D.N.Y. 1978).

20. See Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015).

21. 17 U.S.C. § 107.

22. Id. (“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”).

23. Id.

24. See, e.g., Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).

25. See White v. W. Publ’g Corp., 29 F. Supp. 3d 396 (S.D.N.Y. 2014); see also Veeck v. S. Bldg. Code Congress Int’l Inc., 241 F.3d 398 (5th Cir. 2001) (finding that posting publicly available model building codes on commercial website was not fair use); Lindberg v. Kitsap Cty., 948 P.2d 805 (Wash. 1997) (concluding that government agency violated the public records law when it refused a request to photocopy copyrighted site and drainage plans where intended use would be “fair use”).

26. Letter from Aimee Claeys, Legal Counsel, State of Iowa Bd. of Regents, to Margaret Johnson, Deputy Dir., Iowa Pub. Info. Bd. (July 22, 2016).

27. A risk assessment of the likelihood that a copyright infringement case may be brought and its likelihood of success is usually involved, often memorialized in a “fair use opinion” prepared by the attorney. See discussion in “Practice Tips.”

28. See Hofheinz v. Discovery Commc’ns, Inc., 60 U.S.P.Q.2d 1845 (S.D.N.Y. 2001).

29. See Minn. Op. Att’y Gen. 852 (1995).

30. The muskellunge is a legendary sport fish native to Minnesota.

31. Minn. Op. Att’y Gen. 852.

32. Id. at 15.

33. A typical response is that the material has been provided via a public records law and is considered public record, and that therefore the agency will not sign the copyright license or release form.

34. For more information on preparing fair use opinions for documentary film, see Jon Garon, The Lawyer’s Role in Promoting the Use of Fair Use (Mar. 8, 2016) (unpublished manuscript, Shepard Broad College of Law), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2750462.

Walter G. Lehmann

Walter G. Lehmann is managing partner of the art, entertainment, and museum law firm Lehmann PLC (formerly Lehmann Strobel PC) where he has advised creative professionals and cultural institutions on intellectual property issues including copyright fair use for more than 20 years.