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.

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