Coastsider fights for the right to stream clips from MCTV


Posted by on Sat, January 27, 2007

Coastsider has been trying to persuade MCTV to let us stream clips from their cablecasts of Coastside board meetings since April of last year.  Julia Scott has written a pretty good summary of the situation for the County Times.  I’m working on an opinion piece that lays out our position on this issue in greater detail, and I invite MCTV to participate in the discussion here on Coastsider. In the mean time, I recommend you read the story from the County Times.

"I think the ordinary presumption is that (the station) does have a copyright to the images that it creates," said lawyer Peter Scheer, executive director of the California First Amendment Coalition.

However, he said, "When the city or any other agency makes a recording of its proceedings, that has to be made available. One could argue that because it is a public record, MCTV loses the right under the federal copyright law to try to restrict its distribution."

Scheer said Parr could also try to obtain the tapes under an exception in the copyright law for "fair use" of a cable segment for journalistic or educational purposes.

Two small corrections to the County Times Story: MCTV’s executive director’s name is Connie Malach (not Malack), and Coastsider gets about 5,000 unique visitors per week, not per month.


I’m not a copyright lawyer, although I used to do consulting work for one and therefore have a bit more insight than many non-lawyers.  Also, being a programmer, I’ve put serious time into looking at copyright law.

My understanding of copyright law is that if you are paid to create a copyrightable work, unless there is explicit contract language to the contrary, the employer owns the copyright.  Since MCTV is paid to tape meetings, MCTV does not own the copyright.  For City Council meetings, MCTV is in fact paid by virtue of getting franchise fees, and (I believe) a contract requirement that MCTV’s taping of HMBCC and MCC meetings is included under those franchise fees.  Other agencies such as CCWD, CUSD, GSD, MWSD pay MCTV directly and it should be even more clear that those agencies own the copyrights to their own meeting tapes.

I would like to see counterexamples to my point— someone who was paid to create a copyrightable work owning the copyright.  I can’t think of any.

I have complete faith that if Coastsider.com takes this to court that Coastsider.com will prevail.  The problem is that MCTV has an in-house lawyer who likes to send threatening letters.

Unless MCTV’s policy has changed (fat chance), another comment in the SMCT article is wrong:  MCTV will not “give” anyone a copy of the tape for personal use.  They’ll sell you one, and the charge is pretty steep.  MCTV makes money selling copies of meeting tapes which they were paid to make, and may not have rights to in the first place.  What’s wrong with this picture?  This is very likely the true underlying reason why MCTV is trying to restrict use of “their” meeting recordings—they want the income from selling copies.

Leonard,

Copyright law is more nebulous than that. Here’s your counter-example: Me. I retain copyright to all of my commercial work. Wedding and portrait photographers usually “keep the negatives,” too—you are just paying for the copy of the image, not the image itself (which they retain ownership to).

You’ll also notice that all my work here on Coastsider is copyrighted (though I’m giving away my “Monday Photos” for free for personal use.

The real issue in my mind hinges on the fact that both parties—the HMB City Council and MCTV are supported by public funds and thus the video record of City Council meetings should be available to the public. The current level of availability is low—a single broadcast? You can buy a copy of the tape? C’mon, that is pathetic.

The broadcasts of those meeting need to be available in a real way to the public. MCTV says they can’t afford to put them on the Internet. We do it here with no additional cost in hardware and about six hours of labor (including shooting the meeting).

—Darin

Comment 3
Sat, January 27, 2007 5:23pm
Carl May
All my comments

Who owns the copyright depends on the arrangement between the party paying for a work and the party making the work. One cannot make assumptions.

Carl May

Responding to both Darin and Carl—

In the absence of a contract stating something to the contrary, I’m still reasonably certain that whomever commissioned the work and paid for it is assumed to own the copyright.  I assume that wedding photographers (an exception that I knew about) make you sign a contract stating that they own the originals (a crock if I ever heard one, but people do sign it.)  So of course there can be a contract altering the situation.

At my last salaried position they wanted me to sign a contract stating that they owned everything I wrote while employed there.  No dice.  For me, they had to modify the contract language to only include what I wrote for them.

Darin, I assume that Coastsider is not paying you for what you provide to Coastsider, so it seems clear to me that absent other agreements, you own the copyright.  I don’t see that as relevant to my argument.  I don’t know what your commercial work is.  If you are an independent contractor, then yes you own the copyright unless there’s a contract to the contrary.  Different situation, different rules.  Note that newspapers always own the copyright to photos taken by staff photographers.  Suppose that I send a TV station a video that I took and allow them to run it?  Who owns the copyright?  Lacking a written contract to the contrary, I own the copyright.  What if they call me and say “go record x and we’ll pay you for your recording.”  Now who owns the copyright?  I stand firm that they own it.

In writing and rereading the above, I’ve convinced myself it’s not quite as clear-cut as I originally presented it, but I still believe that MCTV cannot claim copyright ownership of public meeting recordings they were paid to make.  So the question somewhat comes down to “what’s right?”  Is there anybody here not affiliated with MCTV who thinks MCTV is right regarding this issue?

And of course, all of this is pretty much academic for the situation that the original article is about; the overriding consideration is spelled out in Darin’s third paragraph:  it’s all public money.

MCTV has long forgotten that they are a public benefit corporation.

I understand that Pacifica’s public access operates as if they were subject to the Brown Act.  To my knowledge, MCTV does not allow outsiders at their board meetings, does not publish agendas, minutes, meeting notices, or even a list of who’s on the board.  And who gets to vote on board members?  Who picks who gets to run for the board?  Who counts the votes?  Does MCTV do anything right?

I have a unique video that I think coastsiders would like to see.  I haven’t offered it to MCTV simply because I think that Connie won’t run it because it’s mine.  Public benefit?  Hah.

I read Julia’s piece when it came out. I emailed her to comment on it. Following is an excerpt from that email;

Julia,

Another good piece; interesting issue, too. There is one thing I thought I might point out. After you introduce Connie, you quote her. On the second set of quotes, she apparently says MCTV will ‘give people a copy of a tape for their personal use’. That has not been my experience, going back decades. They will, however, sell people a copy (tape) of a recording.
Just thought I’d clarify my own experiences. There’s never been a ‘give’. Last I heard, from MCTV, it was $30.00 p/copy. I do like the way Barry posts the videos. I can go right to the segment I’m interested in with the click of the mouse. Very useful, and in two formats; Quicktime & Windows Media. Also, at no cost. I’ve always beat the table on access to information for all. Barry’s position seems to be more in line with that goal.

I could present a valid argument for both sides. Interesting dilemma; wish it were our only one. I don’t know how all this will play out, but I am grateful for the videos that Coastsider puts out. I know it takes a great deal of commitment and effort to produce the final copy. Thank you.

As far as I’m concerned, all public meetings should be taped for the benefit of anyone interested, and everyone should have access; and not at $30.00 p/copy. 

I’ve commented here on Coastsider to this before, and am grateful to Coastsider for the effort and results.

Comment 6
Sun, January 28, 2007 7:40pm
Carl May
All my comments

Leonard,

Once again, you need to know the specific individual arrangements between the parties paying MCTV to video something and MCTV.

What you are describing in your assumption is often called a “work made for hire.” The party paying for the creation of something is, indeed, the copyright owner in such a case. It usually takes a formal contract, coverage in an employment contract, for example, to establish a work made for hire.

Unless it is paid for as a work made for hire, the copyright to a photograph belongs to the photographer the moment it is made—the moment the shutter is released. You’d be surprised how much litigation and legal precedent there is on this matter. Who owns the copyright when a photographer is on her employer’s nickle during working hours but happens to take a picture of something that is not the subject of her employment? Some contracts explicitly make such images the property of the employer, and some without the necessary clauses or instances where there is no explicit employment contract allow the photographer to retain copyright. The party paying to have a photograph made or paying someone’s wages during the time that person makes a photograph cannot be assumed to be the copyright owner.

The same kinds of considerations carry over to all kinds of creative activities—writing, music, etc. One simply must know the specifics of individual cases to know who properly and legally owns copyright to a creation. Yet more considerations get into how creations may be licensed for reproduction, sold, or used or for various purposes. Just because one owns copyright does not mean one can sell or use a work for anything one wishes.

Added on to all this in the case of governmental activities are considerations of public domain. Many works (but not all) paid for by a government in the U.S. and made by government employees or persons working for the government under specific contracts cannot be copyrighted and may freely be used for any legal purpose by any person. One would have to look at the arrangements between MCTV and the government agencies involved to know who owns the video and whether or not the images and sound might be in the public domain.

Even if in the public domain, MCTV still may not be under any obligation to provide copies of the material—that, too, depends on arrangements. In this particular situation, however, one could capture a broadcast of public domain material and use it for one’s own legal purposes.

Sorry for the length of this. Copyright can be a convoluted and detailed matter and is sometimes counter-intuitive. That’s my point: assumptions frequently cannot be made.

Carl May