The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In August, a federal court rejected a copyright lawsuit brought by the City of Inglewood, Calif., against a critic of the city. The alleged copyright infringement? Posting excerpts of videos of city council meetings—videos that are, under California law, public records—interspersed with critical commentary.
The court held that, under California law, cities can't claim copyright in public records. And the court also held that, even if the city owned a copyright in the videos, defendant Joseph Teixeira's use of the videos would have been fair use: political commentary that quotes the contents of the videos and comments on what is said there, and that doesn't undermine any commercial value of the videos (for various reasons, including that, as public records, the videos can't be sold for a profit by the city in any event).
But there's more: Under federal copyright law, a prevailing party in a copyright case—whether the plaintiff or defendant—may recover attorney fees if the other party's claim was sufficiently weak. And on Thursday the court did indeed award Teixeira his fees; the city officials' decision to sue Teixeira will cost Inglewood taxpayers over $110,000 in fees, plus court costs, plus whatever fees they owe their own lawyer. Here is the court's explanation (which strikes me as quite persuasive) of why a fee award was proper:
A. Defendant's Success in this Litigation
Defendant achieved a complete victory on the merits in dismissing the City's action with prejudice….
B. Objective Unreasonableness of the City's Claims
[T]he City's claims were objectively unreasonable. As the Court determined in its [Motion to Dismiss] Order, "the only published authority on the question of the ability of California public entities to assert copyright over works they produce holds that the City may not assert a copyright interest in the City Council Videos." Prior to bringing this action, the City should have closely scrutinized the only controlling authority on this issue—County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301 (2009)—and at least discussed the case with Defendant or his counsel.
Both at the hearing and in the papers, the City argued that it was "manifestly reasonable to assume" that the Court would not follow [County] of Santa Clara. The premise of the City's contention is that the holding in Santa Clara is in "direct conflict" with the Second Circuit's opinion in County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179 (2d. Cir. 2001). (Opp. at 7). Due to the purported conflict, the City "could not have intuited" that the Court would be swayed by state and not federal case law in a field within the exclusive jurisdiction of the federal courts.
Plaintiff has been and remains simply wrong on this point. There is no conflict between the holdings of Santa Clara and Suffolk, and a cursory review of the two cases shows just how mistaken the City is. The Second Circuit framed the issue before it as follows: "[A]lthough 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." The panel answered that question in the negative, holding that "the [New York] Legislature, by enacting FOIL, did not abrogate Suffolk County's copyright."
The Court of Appeal in Santa Clara was presented with the same issue but in the context of California law. The panel thus considered whether California law prohibits a California public entity to obtain and enforce a copyright under the Copyright Act. The appellate court concluded that, in the absence of "an affirmative grant of authority," a California municipality may not do so. Because the City is a California entity, not a New York one, this Court relied on Santa Clara in dismissing the City's copyright claims….
Even if the City were permitted to hold a protectable copyright under the Copyright Act, its claims would still fail because Defendant's videos are textbook examples of fair use works. As the Court already explained, Defendant produced "quintessential transformative works for the purpose of criticism and commentary on matters of public concern." The Court's view is consistent with, although in no way influenced by, the universal condemnation the lawsuit received from legal academics and other experts in copyright, First Amendment, and public records law.
The nature and purpose of Defendant's videos should have given the City at least some pause and prompted it to conduct further research into the merits of its claims. Indeed, when a fair use defense is that strong, courts view the copyright infringement claim as "objectively unreasonable." This factor thus weighs in favor of a fee award….
C. The City's Motivations in Bringing its Claims
It is, of course, impossible to know with certainty what prompted the City to bring this lawsuit. The City avers that its only motivation was to enforce the rights it believed it had in the videos. But the Court is not persuaded.
As Defendant rightly notes, the main justification of the Copyright Act is "the protection of the commercial interest of the author." California law, however, prohibits the City from charging anything more than the "direct costs of duplication" when providing public records. Pecuniary gain, therefore, could not have been the motivating factor in filing this action.
As the Court made clear at the hearing, the City's most plausible purpose was to stifle Defendant's political speech after he harshly criticized the City's elected officials. As such, this factor weighs heavily in favor of an attorneys' fees award.
At the hearing, counsel for Plaintiff implied that this Court was basing its ruling on the reaction of the press or the academic community. The Court does not do so. Defendant has submitted various materials in support of its Motion that are consistent with granting attorneys' fees. The Court, however, does not base this Order on those materials and would reach the same conclusion in their absence.
D. Deterrence of Future Frivolous Actions
The Court is also persuaded that a fee award is necessary to deter future meritless litigations of this kind. The City argues that the attorneys' fees "will have absolutely no deterrent effect" on a municipality that intends to file no future copyright lawsuits. Even if true, the Court notes that deterrence is a broad value that is not limited to the individual litigants here.
Indeed, a reasonable award of fees will serve to deter other entities, whether public or private, that contemplate bringing unreasonable suits to pressure an individual into abandoning protected activity.
E. Goals of the Copyright Act
The Court is convinced that the purposes of the Copyright Act are furthered when the transformative works such as the videos involved here are protected from unreasonable claims. To the extent the City denies that Defendant's videos constitute "original literary, artistic, and musical expression," courts have rejected such arguments. See Choyce v. SF Bay Area Indep. Media Ctr., 2014 WL 5597274, at *5 (N.D. Cal. Nov. 3, 2014) ("[W]hile the Indybay website may not be 'artistic creativity' per se, it is a forum for public expression. The Copyright Act's feeshifting provision is designed to ensure that such forums for expression are not unhindered by asserted intellectual property claims that have no basis in the law.").
Indeed, this lawsuit posed a serious threat to critical political expression, and the successful defense against the City's claims successfully maintained the boundaries of liability under the Copyright Act. In sum, all factors favor granting reasonable attorneys' fees. The Court now turns to calculating the precise amount of the award….
Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.