Q: I run a liberal blog in conservative California county. I was tipped off to the existence of a voicemail left by a consultant of a prominent developer on the private cell phone of a city council member; the tone of the voicemail expressed disappointment in a vote, a call to meet and “improve their working relationship” or else “it’s going to be a long two years.
I filed a request for the voicemail with and it was provided to me via a public records request.
I contacted the consultant about the voice message and he has threatened to sue me and the blog if I publish the voicemail recording or a transcript of such citing he owns the copyright on the message (even though he no longer controls it); this consultant has promised to make this an expensive lesson for me if I published.
My lawyers tell me I have nothing to worry about and a think tank on public records has never heard of anyone using this defense.
My question is: once a record becomes public and is available to anyone, would my site be liable to a lawsuit for copyright infringement?
A: Your inquiry raises several issues related to copyright law and the fair use doctrine, both of which are fairly complex and require the analysis of many complicated factors. We have done some general research on whether a person can claim a valid copyright interest in a voicemail message, and have not been able to find a clear answer. While we are unable to provide specific legal advice through this hotline service, and don’t have the resources to provide an in-depth legal analysis, we can provide some general background information on copyright law that you might find useful.
As a general matter, the United States Copyright Law, U.S. Code Title 17, protects original works of authorship that are fixed in a tangible medium. The owner of a copyright in a sound recording would typically be the person responsible for its creation. One of the rights accorded to the owner of a copyright is the right to reproduce or to authorize others to reproduce the work in copies. This right is subject to certain limitations provided in the Copyright Law. One of the more important limitations is the doctrine of “fair use,” which recognizes that certain acts of copying may be defensible. This doctrine has developed through court decisions over the years and has been codified in section 107 of the Copyright Law. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use constitutes fair use of copyrighted material:
- 1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- 2) the nature of the copyrighted work;
- 3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and - 4) the effect of the use upon the potential market for, or value of, the copyrighted work. A finding of fair use depends on an application and weighing of all four factors.
As you can see, the analysis is inherently fact specific and is decided on a case-by-case basis. The distinction between what is fair use and what is infringement in a particular case is often not clear or easily defined. The U.S. Copyright Office provides some information on the doctrine of fair use that you might find helpful.
The fact that a work has been made publicly available is typically not relevant to the copyright infringement analysis.
Another point to consider is whether statutory damages could be available to the copyright owner if he prevailed in an infringement action. As a practical matter, the availability of statutory damages can be an important factor in determining how likely a copyright owner is to pursue an infringement claim and what the potential for exposure might be. In some circumstances, the financial incentive to pursue a claim is limited. This analysis is beyond the scope of what we can offer through this service, but it might be worth having your attorneys consider it.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.