Monday, August 24, 2015

The platonic ideal of fair use: critical remix of municipal video

City of Inglewood v. Teixeira, No. 15-cv-01815 (C.D. Cal. Aug. 20, 2015)
Teixeira lives in Inglewood, California, and posts videos on YouTube as “Dehol Trouth.”  The City argued that he infringed the City’s copyright in recordings of its city council’s meetings, and here it loses comprehensively.  One hopes a motion for the defendant's attorneys' fees is forthcoming.
First, California law barred the City from claiming copyright in its video. “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.”  In the absence of an affirmative grant of authority to claim copyright, a California public entity may not do so.  There was no such grant here.  The City tried to argue that the Supremacy Clause overrode California law and allowed it to claim copyright, but the Supremecy Clause doesn’t forbid a state from choosing whether or not it wants copyright protection for its entities’ works, and probably the Copyright Act couldn’t require it to allow copyright claims.  The California legislature has expressly granted its entities to assert copyright protection for software, Cal. Gov. Code § 6254.9 (and educational material and materials produced by the Department of Toxic Substances Control, go figure), but not video, as a California appellate case cited favorably by the California Supreme Court made clear.
Regardless, Teixeira’s videos were fair use as a matter of law, on the pleadings.  Even assuming, as alleged and contrary to Teixeira’s representations, that the videos were used for commercial purposes, every factor heavily favored fair use.  Teixeira used carefully chosen portions of the larger works to comment on and criticize the City Council’s acts and members.

The videos “consist of his narrating his criticism of Mayor Butts over slides or other text, documents – such as a report by the Inglewood city clerk – and video clips, some of which are taken from the City Council Videos over which the City claims a copyright interest.”  The shortest was 3 minutes and 43 seconds and the longest was 15 minutes, and the clips used were considerably shorter.  “Some of the clips are used unadorned but they are most often frequently overlaid with Teixeira’s oral and written commentary and criticism, as well as music. Even when unadorned, they form only part of longer videos, with the clips contrasted with documents, sound recordings, and other video clips, accompanied with Teixeira’s written and oral commentary.”  This was highly transformative.  Not only did they offer criticism and commentary, but fair use “generally provides a greater scope of protection when the works involve[d] address matters of public concern.”
Los Angeles Times v. Free Republic, CV–98–07840– MMM, 2000 WL 565200 (C.D. Cal. Apr. 4, 2000), was inapposite, because that case found that “limited commentary added to verbatim copies was not sufficient” to justify the amount of copying: full, verbatim copies.  Teixeira’s use was wholly different sort: his clips were “carefully chosen and heavily edited,” juxtoposed with other materials, and surrounded by Teixeira’s commentary. “No person wishing to find out what occurred during a lengthy City Council meeting would be satisfied with viewing any of the Teixeira Videos.”  (Side note on “carefully chosen”: on a motion to dismiss, presumably this means “as a matter of law, the clips directly relate to the criticism in the rest of the videos.”)  Even if they were commercial, the first factor tilted heavily in favor of fair use.
Nature of the work: Copyrightable, but barely creative.  Favored fair use.
Amount used: Small portions.  The longer videos, 15 minutes long, contained clips from an over four-hour-long video; the clips were all under a minute long and most under 15 seconds.  The shortest Teixeira video was 3:43 and was “almost wholly comprised of a single clip from the City Council meeting,” which was the longest clip used in any of the accused videos.  Throughout, the vide included music added by Teixeira, “but more importantly, his commentary runs along the bottom of the screen as [Mayor Butts talks,” ridiculing his physical and verbal tics and specifically identifying points at which Butts is allegedly lying. The source video was over three hours.
The City argued that Teixeira failed to show that his copying was “essential” to his purpose, and that each topic addressed at the meetings was “an independent and entire work.” No: review of the videos made it clear that Teixeira copied only the parts of the City Council videos that served his purpose of commenting on them, or criticizing particular statements by Butts. The City’s “exceptionally narrow view of an ‘entire’ work is without merit and contrary to the purpose of the fair use doctrine, which permits the use of reasonable quantities of a work for the purpose of criticism and comment.”  This factor strongly favored fair use.
Market effect: there is no market for the City Council videos, and the accused videos were no substitute.  The City argued that Teixeira’s copying denied it  the opportunity to “recoup its expenses” and “deprives [the City] of potential revenue.”  But California law prevents public agencies from charging the public anything more than the “direct costs of duplication” when providing public records, thus prohibiting the City from recouping its cost of production.  There could be no commercial market for the videos.  This factor strongly favored fair use.
Thus, fair use as a matter of law. The City accused Teixeira of wanting “to criticize the City without doing his own work” by “posting substantially all of the full [City Council Videos] with [his] comments posted on top of them.” “Even if the City’s characterization of the Teixeira Videos were accurate, fair use would allow such use for the purpose of commentary.”

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