Monday, April 30, 2007

Qualified immunity, videotape, and copyright

Today's decision in Scott v. Harris, as Marty Lederman writes, involves the majority's interpretation of videotape recorded by the police cars involved in the chase that left the plaintiff paralyzed. The Supreme Court has, rather unusually, put the videotape up on its website and suggests that readers of the opinion watch the tape for themselves.

There is a minor copyright hook here: assuming that there is an author (on which more presently), the videotape is copyrighted -- the exclusion for government works in the US covers only works of the federal government -- and putting the whole thing up on the Court's website infringes the copyright owner's rights. The copyright owner in footage of Reginald Denny's beating -- surely at least as newsworthy -- has successfully sued news organizations who broadcast that footage without paying. But, given that the Court asks us to evaluate the tape for ourselves so that we will understand its legal analysis, there's a strong fair use argument. You don't have to trust the Court's judgment if you can look for yourself. Because the legal analysis requires assessing the entire context of the car chase, copying the entirety of the relevant events is necessary to the use -- thus, an analysis that in litigated cases (e.g., Nuñez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000)) has so far only covered photographs should also extend to other media. Moreover, though states can own copyrights, the reason they put cameras on police cars has nothing to do with copyright's incentive structures and everything to do with recording events for later oversight. This affects both the type of work (factual) and the market analysis (not really operative even if there is a market for footage of police chases).

Of course, many of these considerations apply in the average substantial similarity case. Courts have included black-and-white pictures of accused works, and sometimes accusing works, in prior opinions. Given available technology, they should consider going further. Why shouldn't an opinion include relevant excerpts of plaintiff's and defendant's works, of whatever medium? Those of us who teach IP know that words on the page are essentially useless for helping students understand the substantial similarity inquiry for non-literary works. If writing about music is like dancing about architecture, and if the judicial enterprise requires a public attempt to justify and explain decisions, then copyright cases in which substantial similarity or transformativeness are at issue should routinely set forth the relevant evidence, even when that evidence does not consist of words.

/end rant.

One could also ask whether there was any authorship at all in the footage, since no human chose camera angles or anything else we conventionally associate with authorship in film. At most, a human was involved in editing -- selecting which footage was relevant to the dispute. But that might not have risen to the necessary originality, if everyone would have agreed about the relevant time period, as seems likely; deciding where to start and where to stop within a minute or so is not particularly creative.

More important than the copyright angle, though, is the extent to which the Supreme Court treated video as transparently providing access to truth. Jessica Silbey has written an excellent article on the subject of film as evidence/film as unmediated truth. Given what the Court said in this case and the attention devoted to the issue of interpretation by the dissent, as well as the spread of video cameras throughout public places, her article will only increase in relevance over time.

2 comments:

Marty Lederman said...

Rebecca: Assuming that the state does have a copyright in the film, surely once the state submits it as evidence to a court, that should have some bearing on the legality of the court's use of it, no?

Perhaps on a waiver theory. But certainly it's fair use. The House Report on the 1976 Act (page 65; see also Senate Report at 61-62) suggested that "courts might regard as fair" the "reproduction of a [copyrighted] work in legislative or judicial proceedings or reports"; and, of course, copyrighted materials are *constantly* published in, e.g., the Congressional Record and U.S. Reports. (Think, for instance, of Carlin's Seven Dirty Words in Pacifica, or Brennan's extensive quotations from the Ford book itself in Harper & Row, 471 U.S. at 584-85 n.8.)

In general, see http://www.usdoj.gov/olc/pincusfinal430.htm

Rebecca Tushnet said...

I don't think there's a waiver on these facts. Internal use for judicial evaluation is one thing, and wouldn't even necessarily involve unauthorized exercise of any copyright rights, since if the state provides a tape or DVD then no one else needs to make any copies. By contrast, posting the work on the web for anyone to watch goes beyond what anyone might have expected, at least before this case.

It's not clear to me that all of the works printed (often in their entirety) in the CR are used fairly, at least under the conventional test. And the congressional habit of sticking newspaper articles into the record, and legislative hearings, at will may have a perverse consequence: I suspect it's one reason Google Book Search treats government documents just like ordinary published works and refuses to give the full text of gov docs published after 1923, even though there's no copyright in government works.