Proprietary information in the public record
Q: The city council appointed a Taser task force. The City Attorney’s office regularly reminded the task force that it was subject to the Brown Act. I recorded the public meetings on video, and uploaded to YouTube part of a presentation by a consultant for Taser Intl., given at one of the meetings. Now YouTube has removed the video, as a result of a third-party claim of copyright infringement.
I assume no one is falsely laying claim to my poor-quality amateur video, and that the claim is that the content (the presentation) is protected by copyright. My understanding is that writing (in this case, in the form of a PowerPoint presentation) presented to all members of a body subject to the Brown Act is a public record, and therefore in the public domain. Is this an accurate interpretation?
A: As a general rule, it is not true that a work would lose copyright protection because it is shown at a public meeting of a city counsel. For example, if a Roy Lichtenstein painting is held up a meeting during the discussion of whether to declare a special day honoring his art, that does not meant the copyright in that painting would pass into the public domain.
That said, it is also true that in some instances city’s will information entities and individuals submitting proposals — such as architectural design proposals for a new building — that the drawings included in those proposals will become part of the public records and can be reproduced, etc., by members of the press and public, in which case the designer, by submitting the proposal, essentially grants a license for those types of uses. I do not know, however, whether the Palo Alto City Council informed Taser of anything like this before the presentation was given.
Even if not, it is also possible (1) that making the presentation at a city council meeting that can, by law, be videotaped by members of the public constituted an implied license that the presentation could be depicted on any such videotapes and/or (2) that your video was a fair use of the presentation as presented at the meeting and thus not copyright infringement. Your video was not for commercial purposes, but simply to inform other members of the public of what occurred a public meeting of the city council, and it is difficult to see how Taser could claim that it makes money from licensing its presentation (as opposed to selling its product). While those are only two of the factors courts look at in the fair use analysis, they are typically considered the most important and seem to support fair use in this context.