Following the 2023 Covenant School shooting in Nashville, in which the shooter was killed by responding police officers, the shooter’s parents inherited the shooter’s copyright interest in various writings (including the shooter’s manifesto). They then assigned it “to a trust to be held for the benefit of the Covenant Parents’ children,” and the Covenant Parents argued that this should keep the writings from being released. The trial court agreed, but yesterday’s Tennessee Court of Appeals opinion in Brewer v. Metro. Gov’t of Nashville (Judge Kristi Davis, joined by Judges John McClarty and Thomas Frierson) basically rejected the copyright argument for nondisclosure:
The trial court and the Parents … conflate the concept of access for inspection [which wouldn’t itself implicate the Copyright Act -EV] with reproduction and display [which might potentially implicate the Act, subject to the fair use defense -EV]. Indeed, the TPRA requires that “[a]ll state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state …”
We interpret the TPRA broadly to promote access to the records, in keeping with the statutory purpose. Considering this statutory purpose, we can construe the TPRA in such a way that does not require Metro to publicly display its file. Nor need Metro distribute the records to the public; rather, Metro need only allow Petitioners access for personal inspection. Although the Act protects the means by which copyrighted material may be obtained, the Act itself does not [insure] total confidentiality and secrecy.
As another state court confronted with this issue noted, “[o]ne could certainly disclose a record without either reproducing or distributing the same record.” Nat’l Council on Tchr. Quality v. Curators of Univ. of Mo. (Mo. Ct. App. 2014); see also Ali v. Phila. City Plan. Comm’n (Pa. Commw. Ct. 2015) (“[N]ot every disclosure of copyrighted material without the owner’s consent violates the Copyright Act.”). By the same token, Metro may allow access to the records for personal inspection without itself copying, displaying, or publishing the records. This result “allow[s] the public to scrutinize [Metro’s] reliance on or consideration of the copyrighted material[,]” thus furthering the purposes of the TPRA.
That said, we acknowledge the potential issue foreseen by the trial court. Assuming for argument that the Parents hold a valid copyright and that Petitioners seek copies of the material pursuant to section 10-7-506, where does this leave Metro as the records custodian? In Ali, the Pennsylvania appellate court explained this dilemma well:
Although the rights conferred on the copyright holder are subject to “fair use,” the Copyright Act is nonetheless problematic for local agencies when faced with a RTKL [Right-To-Know Law] request that seeks copyrighted materials. Unless the copyright holder has consented to duplication, duplication of the copyrighted material under the RTKL carries the risk that the copyright holder will sue the local agency for infringement in federal court.
If found to be an infringer, the local agency could be held liable to the copyright holder for actual or statutory damages, which, in the case of willful infringement, could be up to $150,000. The local agency could also be ordered to pay the copyright owner’s costs and attorneys’ fees. All the while, the local agency is expending taxpayer dollars in costs and attorneys’ fees to defend itself in an infringement action occasioned not by its own assessment of the risk and subsequent voluntary disclosure, but by forced disclosure by [court order].
This concern, while reasonable, falls outside the scope of what we must decide today. This is a TPRA case in which Metro is the respondent. Thus, our ruling is narrowly tailored to address only Metro’s obligations under the TPRA and whether it can meet that obligation without running afoul of the Act. Construing the TPRA broadly to promote access to public records, as we are required, we conclude that under these particular circumstances, the only overt action Metro must take to meet its obligation is to allow Petitioners access to the records for personal inspection. Although we acknowledge the copying rights conferred to the public by section 10-7-506, we do not opine whether it is advisable for Petitioners to copy or otherwise reproduce those records upon said personal inspection and access.
Simply put, so long as Metro maintains the records, it must allow Petitioners access to same for personal inspection. Whether Petitioners choose to go further than that considering their potential copyright liability is left to them. Likewise, if the Parents wish to pursue a copyright infringement action against Petitioners based on how the Petitioners choose to use the information in the records, the Act provides the Parents with that remedy. See Nat’l Council on Tchr. Quality v. Minn. State Colls. & Univs. (Minn. Ct. App. 2013) (“If [Minnesota law] requires a Minnesota governmental entity, such as MnSCU, to release copies of public data, the person or entity receiving the data takes the information subject to the owner’s [federal copyright] rights. All of the author’s rights and remedies under the [Act] are unimpeded.”).
The Parents argue that the weight of authority on this issue supports their position. Respectfully, our research suggests otherwise. The cases addressing the issue before us reflect a variety of results. For example, several courts have held that while the Act applies to public records, the fair use limitation, found at 17 U.S.C. section 107, allows the records to be copied. See, e.g., Zellner v. Cedarburg Sch. Dist. (Wisc. 2007) (“Applying the ‘fair use’ factors outlined in 17 U.S.C. § 107 in this case, we are satisfied that the CD and the memo do not fall within the copyright exception under Wis. Stat. § 19.32(2).”); Nat’l Council on Tchr. Quality (fair use allowed disclosure under Minnesota law where requestor, a non-profit working for educational reform, planned to use the information for “criticism, comment, … scholarship, or research”); ACLU of Utah Found., Inc. v. Davis Cnty. (Utah Dist. Ct. 2021) (concluding “that the laws of copyright do not limit the release of the Utah Jail Standards to these Petitioners for the uses they have outlined[,]” where “the type of use envisioned by these Petitioners falls easily within the fair use doctrine of federal copyright law”); State ex rel. Rea v. Ohio Dep’t of Educ. (Ohio 1998) (“Exceptions to public records requests do not include the copyright defense where the public records fall under the ‘fair-use’ exception to the federal copyright statute or where the copyrighted material is purchased by the public office or agency that is the subject of the public records request.”). {Petitioners argue on appeal that the fair use exception allows Metro to release the disputed records. In light of our decision that the TPRA and Act do not conflict here, we need not delve into Petitioners’ intended uses for the information.}
On the other hand, at least one court has rejected the fair use argument, finding that to be the sole purview of the federal courts. Curators of Univ. of Mo. (“[T]his court lacks the authority to determine whether a particular use of copyrighted materials constitutes fair use, as federal courts have ‘original jurisdiction of any civil action arising under the [Act].'”); see also Pictometry Int’l Corp. v. Freedom of Info. Comm’n (Conn. 2013) (noting that the court lacks “jurisdiction to determine whether a particular use of copyrighted materials infringes on the copyright holder’s rights under federal copyright law or, instead, constitutes a fair use of the materials”).
Accordingly, there is no weight of authority as the Parents suggest. Rather, the results vary and depend in part upon the language of the state law at issue. And here, the TPRA’s text provides a solution that allows Metro to comply with Petitioners’ requests while avoiding conflict with the Act…. Metro can satisfy its obligations under the TPRA by allowing Petitioners to access the records for personal inspection, thereby avoiding conflict with the Act. To the extent Petitioners then engage in actionable conduct under the Act, the Parents may pursue the remedy available to them, as those remedies remain unimpeded, and Petitioners can raise any relevant defenses….
Note that I was one of the many signers of an amicus brief arguing against using copyright law to limit disclosure of the writings; many thanks to the Vanderbilt Stanton Foundation First Amendment Clinic and the Intellectual Property & the Arts Clinic for representing us on that brief.
