Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 1 of 34 Page ID #:45

DAVIS WRIGHT TREMAINE LLP
THOMAS R. BURKE (State Bar No. 141930)
thomasburke@dwt.com
2
505 Montgomery Street, Suite 800
3 San Francisco, CA 94111-6533
Telephone: (415) 276-6500
4 Fax: (415) 276-6599
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DAVIS WRIGHT TREMAINE LLP
DAN LAIDMAN (State Bar No. 274482)
danlaidman@dwt.com
DIANA PALACIOS (State Bar No. 290923)
dianapalacios@dwt.com
865 South Figueroa Street, 24th Floor
Los Angeles, California 90017-2566
Telephone: (213) 633-6800
Fax: (213) 633-6899

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Attorneys for Defendant
11 Joseph Teixeira
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CITY OF INGLEWOOD, a public entity, )
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Plaintiff,
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vs.
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JOSEPH TEIXEIRA and Does 1-10,
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Defendants.
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MOTION TO DISMISS
DWT 26446988v5 0200856-000001

Case No. 2:15-cv-01815-MWF-MRW
Assigned to the Hon. Michael Fitzgerald
DEFENDANT’S NOTICE OF
MOTION AND MOTION TO
DISMISS PLAINTIFF’S
COMPLAINT; SUPPORTING
MEMORANDUM OF POINTS AND
AUTHORITIES
[Fed. R. Civ. P. 12(b)(6)]
Hearing Date: June 22, 2015
Time:
10:00 a.m.
Courtroom: 1600
[Notice of Motion and Motion to Strike
(Rule 12(f)); Request For Judicial
Notice; Declaration Of Joseph Teixeira
With Exhibit B; Declaration Of Dan
Laidman; Notice of Lodging of DVDs
With Exhibits A, C-F; Notice Of Manual
Filing; and [Proposed] Order Filed
Concurrently]
Action Filed: March 12, 2015

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 2 of 34 Page ID #:46

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on June 22, 2015, at 10:00 a.m., or as soon

3

thereafter as the matter may be heard before the Honorable Michael W. Fitzgerald of

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the United States District Court for the Central District of California, in Courtroom

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1600 of the Spring Street Courthouse, located at 312 N. Spring Street, Los Angeles,

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California 90012, defendant Joseph Teixeira will and hereby does move this Court,

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pursuant to Federal Rule of Civil Procedure 12(b)(6), for an order dismissing the City

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of Inglewood’s (the “City”) Complaint with prejudice.

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This Motion is made on the following grounds:
1.

This action arises from alleged infringement of the City’s purported

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copyrights in its video recordings of several of its City Council meetings, but the City

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is precluded by California law from securing copyright protection in these public

13

records. See Memorandum Section III.A, infra.

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2.

Even assuming that the City could secure a copyright in its video

15

recordings of City Council meetings, Mr. Teixeira’s allegedly infringing videos are

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highly transformative political commentaries that are protected by the fair use

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doctrine as a matter of law. See Memorandum Section III.B, infra.

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For each of these reasons, the City’s Complaint suffers from fatal legal

19

deficiencies that cannot be cured by amendment. See Memorandum Section IV,

20

infra. Therefore, the Complaint should be dismissed in its entirety, with prejudice.

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This Motion is based on this Notice Of Motion, the attached Memorandum Of

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Points And Authorities, the concurrently-filed Declaration of Joseph Teixeira with

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Exhibit B; Declaration of Dan Laidman; Request For Judicial Notice; Notice Of

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Lodging of DVDs with Exhibits A, C-F; Notice of Manual Filing; and all other

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matters of which this Court may take judicial notice, the pleadings, files, and records

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in this action, and on such other argument as may be heard by this Court.

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MOTION TO DISMISS
DWT 26446988v5 0200856-000001

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 3 of 34 Page ID #:47

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This Motion is made following the conference of counsel that occurred on

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April 9, 2015, pursuant to Local Rule 7-3. See Laidman Decl. ¶ 4.1

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DATED: April 16, 2015

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5
6

DAVIS WRIGHT TREMAINE LLP
THOMAS R. BURKE
DAN LAIDMAN
DIANA PALACIOS
By: /s/ Dan Laidman
Dan Laidman

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8

Attorneys for Defendant Joseph Teixeira

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1

In addition to this meet-and-confer session, Mr. Teixeira’s counsel sent a
detailed letter to the City’s counsel prior to the initiation of this action explaining
why the City’s threatened claim was meritless, and why Mr. Teixeira would likely be
entitled to recover his attorneys’ fees and costs should he prevail in litigation. Id. ¶
3. The City did not respond to this correspondence, and instead proceeded with this
lawsuit. Id. Because Mr. Teixeira’s defense against the City’s claim furthers the
purpose of the Copyright Act, if the Court grants this Motion he will file a separate
motion to recover his attorneys’ fees and costs pursuant to 17 U.S.C. § 505.
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 4 of 34 Page ID #:48

TABLE OF CONTENTS

1

Page

2
3

I.

SUMMARY OF ARGUMENT ...................................................................... 1

4

II.

FACTUAL BACKGROUND ......................................................................... 3

5

A.

The City Of Inglewood’s Complaint. ................................................... 3

6

B.

The City Of Inglewood’s Recordings Of Its City Council
Meetings. .............................................................................................. 4

C.

Mr. Teixeira’s Political Commentary Videos. ..................................... 5

7
8
9

III.

PLAINTIFF’S COPYRIGHT CLAIM FAILS AS A MATTER OF
LAW ............................................................................................................... 8
A.

10
11

The City Has No Copyright Interest In Its Public Meeting Videos. .... 9
1.

The City Cannot Copyright Its Public Meeting
Videos Because California Law Does Not
Specifically Authorize Such Protection. .................................. 10

2.

The City’s Assertion Of Copyright In Its Public
Meeting Videos Is Incompatible With WellEstablished State Law And Public Policy. ............................... 12

12
13
14

B.

16

Mr. Teixeira’s Use Of Clips From City Council Meetings In His
Political Commentaries Is Independently Protected By The Fair
Use Doctrine. ...................................................................................... 15

17

1.

Fair Use Is Applied Expansively Where, As Here, A
Claim Implicates Constitutionally Protected Political
Speech. ..................................................................................... 15

19

2.

Fair Use May Be Decided On A Motion To Dismiss. ............. 16

20

3.

Each Statutory Factor Strongly Favors Fair Use. .................... 17

15

18

21

a.

The Purpose And Character Of The Use ....................... 18

22

b.

The Nature Of The Allegedly Copyrighted Works ....... 21

23

c.

The Amount And Substantiality Used ........................... 21

24

d.

The Effect On The Market ............................................. 23

25

IV.

THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE ....... 25

26

V.

CONCLUSION ............................................................................................. 25

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28
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

i

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 5 of 34 Page ID #:49

TABLE OF AUTHORITIES

1

Page

2
3
4
5
6
7
8
9

Cases
Banks v. Manchester,
128 U.S. 244 (1888) ............................................................................................... 14
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) ................................................................................. 1
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ................................................................................................. 8

10

Bouchat v. Baltimore Ravens Ltd. Partnership,
11
737 F.3d 932 (4th Cir. 2013) ................................................................................. 15
12

Brownmark Films, LLC v. Comedy Partners,
682 F.3d 687 (7th Cir. 2012) ................................................................................. 17
13
14

Bruns v. E-Commerce Exchange, Inc.,
51 Cal. 4th 717 (2011) ........................................................................................... 12
15
16
17
18
19
20
21
22

Building Officials & Code Adm. v. Code Technology, Inc.,
628 F.2d 730 (1st Cir. 1980) .............................................................................. 9, 14
Burnett v. Twentieth Century Fox Film Corp.,
491 F. Supp. 2d 962, 966 (C.D. Cal. 2007) ................................................. 9, 16, 25
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ............................................................................... 2, 18, 21, 22
Caner v. Autry,
16 F. Supp. 3d 689, 710 (W.D. Va. 2014) ............................................................. 19

23

Cariou v. Prince,
24
714 F.3d 694 (2d Cir. 2013)................................................................................... 17
25

CBS, Inc. v. Block,
42 Cal. 3d 646 (1986) ............................................................................................ 14
26
27
28

Consumers Union of United States, Inc. v. General Signal Corp.,
724 F.2d 1044 (2d Cir. 1983)................................................................................. 18

MOTION TO DISMISS
DWT 26446988v5 0200856-000001

ii

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 6 of 34 Page ID #:50

1

County of Santa Clara v. Superior Court,
170 Cal. App. 4th 1301 (2009) ....................................................................... passim
2
3
4
5
6
7

Daly v. Viacom, Inc.,
238 F. Supp. 2d 1118 (N.D. Cal. 2002) ................................................................... 9
Dhillon v. Does 1-10,
2014 WL 722592 (N.D. Cal. Feb. 25, 2014) ................................................... 18, 19
Eldred v. Ashcroft,
537 U.S. 186 (2003) ............................................................................................... 15

8

Fisher v. Dees,
9
794 F.2d 432 (9th Cir. 1986) ....................................................................... 1, 24, 25
10

Golan v. Holder,
132 S. Ct. 873 (2012) ............................................................................................. 15
11
12

Harper & Row Publishers, Inc. v. Nation Enterprises,
471 U.S. 539 (1985) ............................................................................................... 21
13
14
15
16
17
18

Hilton v. Hallmark Cards,
599 F.3d 894 (9th Cir. 2010) ................................................................................... 1
Hustler Magazine Inc. v. Moral Majority Inc.,
796 F.2d 1148 (9th Cir. 1986) ............................................................... 2, 16, 18, 21
In re Syntex Corp. Sec. Litig.,
95 F.3d 922 (9th Cir. 1996) ..................................................................................... 8

19

International Longshoremen’s & Warehousemen’s Union v. L.A. Export
Terminal, Inc.,
69 Cal. App. 4th 287 (1999) .................................................................................. 14
21
20

22
23
24
25
26
27
28

Kienitz v. Sconnie Nation LLC,
965 F. Supp. 2d 1042 (W.D. Wis. 2013) ......................................................... 19, 24
Knievel v. ESPN,
393 F.3d 1068, 1076-77 (9th Cir. 2005) .................................................................. 8
Leadsinger, Inc. v. BMG Music Publ’g,
512 F.3d 522 (9th Cir. 2008) ................................................................................. 16
Leibovitz v. Paramount Pictures Corp.,
137 F.3d 109 (2d Cir. 1998)................................................................................... 22
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

iii

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 7 of 34 Page ID #:51

1

Mattel Inc. v. Walking Mt. Prods.,
353 F.3d 792 (9th Cir. 2003) ................................................................................. 19
2
3
4
5
6
7

Maxtone-Graham v. Burtchaell,
803 F.2d 1253 (2d Cir. 1986)................................................................................. 19
Microdecisions, Inc. v. Skinner,
889 So.2d 871 (2004) ......................................................................................... 9, 11
Mills v. Alabama,
384 U.S. 214 (1966) ............................................................................................... 16

8

National Rifle Ass’n of America v. Handgun Control Federation of
9
Ohio,
15 F.3d 559 (6th Cir. 1994) ................................................................................... 19
10
11
12
13
14
15
16
17

New Era Publications International, ApS v. Henry Holt & Co.,
695 F. Supp. 1493 (S.D.N.Y. 1988) ...................................................................... 13
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ................................................................................................. 1
Norse v. Henry Holt and Co.,
847 F. Supp. 142 (N.D. Cal. 1994) ........................................................................ 18
North County Parents Org. v. Dep’t of Education,
23 Cal. App. 4th 144 (1994) .................................................................................. 13

18

Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical
Reform,
19
868 F. Supp. 2d 962 (C.D. Cal. 2012) ................................................... 3, 20, 21, 24
20
21
22
23
24
25

Righthaven v. Realty One Group,
2010 WL 4115413 (D. Nev. Oct. 19, 2010) .......................................................... 17
Rogers v. Koons,
960 F.2d 301 (2d Cir. 1992)................................................................................... 22
Savage v. Council on American-Islamic Relations,
2008 U.S. Dist. LEXIS 60545; 87 U.S.P.Q.2D 1730 (N.D. Cal. 2008) ......... passim

26

Sedgwick Claims Management Servs. v. Delsman,
27
2009 U.S. Dist. LEXIS 61825 (N.D. Cal. July 17, 2009).......................... 17, 19, 25
28
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

iv

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 8 of 34 Page ID #:52

1

Seltzer v. Green Day, Inc.,
725 F.3d 1170 (9th Cir. 2013) ............................................................................... 24
2
3
4
5
6
7

Sierra Club v. Superior Court,
57 Cal. 4th 157 (2013) ..................................................................................... 13, 14
Snyder v. Phelps,
131 S. Ct. 1207 (2011) ............................................................................................. 1
Sony Corp. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ............................................................................................... 15

8

Steckman v. Hart Brewing,
9
143 F.3d 1293 (9th Cir. 1998) ............................................................................... 25
10

Swatch Group Management Services Ltd. v. Bloomberg L.P.,
756 F.3d 73 (2d Cir. 2014)............................................................................... 21, 22
11
12

Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308 (2007) ................................................................................................. 8
13
14
15
16
17
18
19
20

United States v. Vidal,
504 F.3d 1072 (9th Cir. 2007) (en banc) ............................................................... 12
Wheaton v. Peters,
33 U.S. (8 Pet.) 591 (1834) .................................................................................... 14
Wojnarowicz v. American Family Association,
745 F. Supp. 130 (S.D.N.Y. 1990)............................................................. 15, 16, 19
Wright v. Warner Books,
953 F. 2d 731 (2d Cir. 1991).................................................................................. 18

21

Zella v. E.W. Scripps,
22
529 F. Supp. 2d 1124 (C.D. Cal. 2007) ................................................................... 8
23

Statutes

24

17 U.S.C.
25
§ 105 ......................................................................................................................... 9
§ 107 ................................................................................................................... 2, 15
26
§ 107(1)-(4) ............................................................................................................ 17
27
28

Cal. Code Civ. Proc. § 425.16....................................................................................... 1

MOTION TO DISMISS
DWT 26446988v5 0200856-000001

v

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 9 of 34 Page ID #:53

1

Cal. Gov’t Code
§ 6253(b) ................................................................................................ 3, 11, 13, 24
2
§ 6254.9 .................................................................................................................. 10
3
§ 6257.5 .................................................................................................................. 11
§ 54950 ................................................................................................................... 14
4
§ 54953.5(b) ....................................................................................................... 3, 13
5
6

Cal. Education Code §§ 1044, 35170, 72207 ............................................................. 11

Cal. Health & Safety Code
§ 13159.8 ................................................................................................................ 12
8
§ 25201.11 .............................................................................................................. 11
§ 130251.15 ............................................................................................................ 12
9
7

10

Colo. Rev. Stat. § 24–72–203(4)................................................................................. 11

11

Nevada Rev. Stat. § 239.010(1) .................................................................................. 11

12

South Dakota Codified Laws § 1–27–1 ...................................................................... 11

13
14
15

Utah Code § 63G–2–201(10)(b) ................................................................................. 11
Rules

Federal Rules of Civil Procedure
12(b)(6) .................................................................................................... 8, 9, 16, 17
17
12(c) ....................................................................................................................... 16
16

18

Constitutional Provisions

19

Cal. Const. Article 1
§ 3 ........................................................................................................................... 14
§ 3(b)(1)-(2) ........................................................................................................... 14
21
§ 3, subd. (b) .......................................................................................................... 10
20

22
23
24
25
26

Other Authorities
1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 5.14
(2014) ....................................................................................................................... 9
4 William F. Patry, Patry on Copyright § 4:81 (2015) ................................................. 9

27
28
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

vi

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 10 of 34 Page ID #:54

MEMORANDUM OF POINTS AND AUTHORITIES

1

I.

2
3

SUMMARY OF ARGUMENT

Joseph Teixeira is an Inglewood resident who makes videos commenting on

4

local politics. His videos are sharply critical of the public statements and conduct of

5

Inglewood’s Mayor at City Council meetings. The videos feature short clips from

6

the official recordings of these public proceedings, heavily modified with original

7

text and narration which consists of Mr. Teixeira responding to the Mayor’s remarks

8

and criticizing his political positions. Mr. Teixeira’s “speech concerning public

9

affairs is more than self-expression; it is the essence of self-government,” and it

10

“occupies the highest rung of the hierarchy of First Amendment values, and is

11

entitled to special protection.” Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011).

12

In an unprecedented act of censorship, the City of Inglewood is suing its own

13

citizen for using footage from City Council meetings in his videos commenting on

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public affairs. The City’s aim is clearly to silence Mr. Teixeira, and to punish him

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for his harsh criticism of the Mayor. But his speech is constitutionally protected, and

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fully consistent with our “profound national commitment to the principle that debate

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on public issues should be uninhibited, robust, and wide-open, and that it may well

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include vehement, caustic, and sometimes unpleasantly sharp attacks on government

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and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

20

Through this action, the City is transparently attempting to circumvent these

21

constitutional protections – as well as California’s anti-SLAPP statute2 – by turning

22

to copyright as a vehicle to silence Mr. Teixeira’s political speech. But “Copyright

23

law is not designed to stifle critics.” Fisher v. Dees, 794 F.2d 432, 437 (9th Cir.

24
2

The anti-SLAPP statute (C.C.P. § 425.16) provides a means for the early
dismissal of claims targeting free speech and petitioning activities that “are brought
26 to deter common citizens from exercising their political or legal rights or to punish
them for doing so.” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003). The
27 City’s retaliatory claim falls squarely within the scope of the law, but Inglewood is
exploiting a loophole in which the statute does not apply to federal claims brought in
28 federal court. See Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010).
25

MOTION TO DISMISS
DWT 26446988v5 0200856-000001

1

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 11 of 34 Page ID #:55

1

1986). The City’s ill-fitting attempt to misuse copyright law to suppress the views of

2

a political opponent is entirely meritless for several independent reasons.

3

First, this action is premised on Inglewood’s claim to hold copyrights in its

4

video recordings of City Council meetings, see Cmplt. ¶¶ 14, 19, Cmplt. Ex A; Exs.

5

A-F, but the City is precluded by California law from copyrighting these public

6

records. Section III.A. State law determines if state and local government agencies

7

can secure copyrights in their works, and California’s broad mandate of unrestricted

8

disclosure of public records “overrides a governmental agency’s ability to claim a

9

copyright in its work,” unless state law expressly authorizes such protection. County

10

of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1335 (2009). No state law

11

authorizes Inglewood to copyright its City Council meeting videos. Section III.A.1.

12

To the contrary, its attempt to use copyright to limit public access to these public

13

records is plainly incompatible with state law and public policy. Section III.A.2.

14

Second, the City’s claim is independently barred because Mr. Teixeira’s

15

videos criticizing government officials on issues of public concern are quintessential

16

examples of fair use. See 17 U.S.C. § 107. The doctrine is at its most expansive

17

here, as the City’s claim targets a citizen’s use of public records to criticize his

18

government, which is core First Amendment speech. Section III.B.1. As Mr.

19

Teixeira’s videos are incorporated by reference into the pleadings, and it is obvious

20

from reviewing these works that fair use applies as a matter of law, the issue of fair

21

use is properly decided on a motion to dismiss. Section III.B.2.

22

It is readily apparent that Mr. Teixeira uses the City Council meeting video

23

clips in a highly transformative manner – modifying the original footage with his

24

own on-screen text and narration and juxtaposing the clips with other materials – to

25

criticize Inglewood politicians for their conduct and statements at these public

26

meetings. Section III.B.3. Copyright law encourages such transformative use. See

27

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). See also Hustler

28

Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148, 1153 (9th Cir. 1986) (fair use
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

2

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 12 of 34 Page ID #:56

1

protects “political comment”); Northland Family Planning Clinic, Inc. v. Center for

2

Bio-Ethical Reform, 868 F. Supp. 2d 962, 970-79 (C.D. Cal. 2012) (analogous

3

political commentary videos protected by fair use).

4

Moreover, California law requires Inglewood to make its public meeting

5

videos available for viewing free of charge, and precludes it from charging more than

6

the “direct costs of duplication” for copies. Cal. Gov’t Code §§ 6253(b), 54953.5(b).

7

Thus there can be no commercial market for the City’s meeting videos as a matter of

8

law, and even if there could be, Mr. Teixeira’s sharply critical videos – with titles

9

like “Inglewood Mayor James Butts Lies, Hiding Dangerous Traffic Problems At

10

The Forum” – scarcely serve as a market substitute for the City’s unvarnished gavel-

11

to-gavel recordings of its Council meetings. Section III.B.3. The City also could

12

hold no more than a “thin” copyright at best in its Council meeting videos, and Mr.

13

Teixeira has used no more footage than is reasonably necessary in light of his

14

obvious purpose of political critique. Id. Consequently, all of the statutory factors

15

unambiguously favor a finding of fair use in Mr. Teixeira’s favor.
Because the City has failed to state a claim for each of these reasons, and any

16
17

amendment would be futile in light of the fundamental legal deficiencies, Mr.

18

Teixeira respectfully requests that the Court dismiss the Complaint with prejudice.
II.

19
20
21

A.

FACTUAL BACKGROUND

The City Of Inglewood’s Complaint.
The City of Inglewood “is a municipality incorporated under the laws of the

22

State of California.” Cmplt. ¶ 9. Mr. Teixeira is an individual residing in the City of

23

Inglewood. Id. ¶ 11. He is actively engaged in public affairs, regularly attends and

24

speaks at City Council meetings, submits public records requests for information

25

about local government, and creates documentary-style videos about Inglewood

26

politics and municipal issues, which he posts to a YouTube page under the name,

27

“Dehol Truth.” Cmplt. ¶¶ 11, 19; Declaration of Joseph Teixeira at ¶¶ 2-10; Exs. A-

28

F. The City alleges that Mr. Teixeira has infringed its copyrights by posting to
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

3

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 13 of 34 Page ID #:57

1

YouTube six videos, which use portions of the City’s recordings of five Inglewood

2

City Council meetings, publicly held on the following dates: 7/20/2010, 5/22/2012,

3

4/11/2013, 4/23/2013, and 2/22/2014. Cmplt. ¶¶ 2, 19. The City alleges that it has

4

submitted applications for copyright registrations in its video recordings of two of

5

these Council meetings, 5/22/2012 and 4/23/2013. Id. ¶¶ 14, 19, Cmplt. Ex. A. The

6

City does not allege that it has registered or attempted to register copyrights in its

7

video recordings of the Council meetings of 7/20/2010, 4/11/2013, or 2/11/2014. Id.3

8

B.

9

The City Of Inglewood’s Recordings Of Its City Council Meetings.
The underlying “works” that form the basis of this action are Inglewood’s

10

video recordings of several of its City Council meetings. See Cmplt. ¶¶ 2, 19, Ex. A.

11

● 7/20/2010 City Council Meeting: The City’s recording of this Council

12

meeting is four hours, 40 minutes, 55 seconds long. See Teixeira Decl. ¶ 5, Ex. C. It

13

opens with approximately one minute, 20 seconds of photographs from community

14

events, and ends with various photographs being displayed for approximately two

15

minutes, none of which is included in any of Mr. Teixeira’s videos. Id.; Exs. A-1-A-

16

6. The rest of the video is an unadorned recording of the meeting. See Ex. C.

17

● 5/22/2012 City Council Meeting: The City’s recording of this meeting is

18

three hours, four minutes, 32 seconds long. See Teixeira Decl. ¶ 6, Ex. D. It opens

19

with approximately three minutes, 30 seconds of photographs from community

20

events, none of which is included in any of Mr. Teixeira’s videos. Id.; Exs. A-1-A-6.

21

The rest of the video is an unadorned recording of the meeting. See Ex. D.

22

● 4/23/2013 City Council Meeting: The City’s recording of this Council

23

meeting is two hours, 42 minutes, 27 seconds long. See Laidman Decl. ¶ 2, Ex. F. It

24

opens with a photograph from an event that is on-screen for approximately seven

25

seconds, and ends with various photographs being displayed for approximately one

26
3

The City’s pursuit of this action despite its failure to properly register the
purportedly copyrighted works underscores the true nature of this litigation, which is
28 aimed at suppressing political speech. See Concurrently Filed Motion to Strike.
27

MOTION TO DISMISS
DWT 26446988v5 0200856-000001

4

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 14 of 34 Page ID #:58

1

minute, 30 seconds, none of which is included in any of Mr. Teixeira’s videos. Id.;

2

Exs. A-1-A-6. The rest of the video is an unadorned recording of the meeting. Ex. F.

3

● 2/11/2014 City Council Meeting: The City’s recording of this Council

4

meeting is two hours, 37 minutes, 57 seconds long. See Teixeira Decl. ¶ 7, Ex. E. It

5

opens with a photograph from an event that is on-screen for approximately five

6

seconds, and ends with various photographs being displayed for approximately one

7

minute, 30 seconds, none of which is included in any of Mr. Teixeira’s videos. Id.;

8

Exs. A-1-A-6. The rest of the video is an unadorned recording of the meeting. Ex. E.

9

C.

10

Mr. Teixeira’s Political Commentary Videos.
The Complaint identifies six allegedly infringing videos. Cmplt. ¶ 19. As

11

detailed below, each is a documentary-style commentary on public affairs that uses

12

heavily modified clips from recordings of Council meetings to support Mr. Teixeira’s

13

criticism of Inglewood’s Mayor’s comments and conduct at the public meetings.

14

● Video One: https://www.youtube.com/watch?v=UyCqRiZXRH8

15

Video One is titled “James Butts Accuses The City Clerk Of Election Fraud,”

16

or “James T. Butts Jr. Accuses City Clerk Yvonne Horton of Election Fraud!”

17

Teixeira Decl. ¶ 3(a); Exs. A-1 (video); B-1 (screenshot). The 14 minute, 56 second-

18

long video criticizes the conduct of Mr. Butts, then a mayoral candidate, at the

19

7/20/2010 meeting, at which the body considered a report from the City Clerk about

20

whether Mr. Butts should be removed from the ballot because of questions about his

21

residency. Ex. A-1. Video One uses clips of Mr. Butts’ own public comments at the

22

meeting to evaluate and criticize the remarks that he made about the City Clerk and

23

her investigation, and to illustrate Mr. Butts’ alleged violations of City Council rules

24

at the meeting, as described in original text and voiceover narration superimposed

25

onto the short meeting clips that are interspersed throughout the video. Id.

26

● Video Two: https://www.youtube.com/watch?v=ZruE0a1UF8g

27

Video Two is titled “James T. Butts Jr. Misleads the Public About His Voter

28

Registration.” Teixeira Decl. ¶ 3(b); Ex. A-2 (video); B-2 (screenshot). The 14MOTION TO DISMISS
DWT 26446988v5 0200856-000001

5

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 15 of 34 Page ID #:59

1

minute, 53-second video follows up on the issues presented in Video One, asking,

2

“So, were James Butts’ allegations against the City Clerk’s Office fair and accurate

3

or even relevant? Let’s look at each one.” Id. at 02:12-02:19. The video examines

4

each of Mayor Butts’ allegations in detail, using short clips from his comments at the

5

7/20/2010 meeting juxtaposed with original text and narration and images of other

6

public records to evaluate his claims. Id. at 02:20-14:18. It concludes with harsh

7

criticism of Mr. Butts’ conduct and fitness to serve as mayor. Id. at 14:19-14:49.

8

● Video Three: https://www.youtube.com/watch?v=gUUZdTNe7CA

9

Video Three is titled “Lying Politicians,” or “James T Butts Jr Alibi or

10

apology.” Teixeira Decl. ¶ 3(c); Ex. A-3 (video); B-3 (screenshot). The three

11

minute, 43-second video opens with on-screen text stating that one can tell when

12

politicians are trying to hide something by their body language, and then shows

13

footage from the 5/22/2012 Council meeting, with the following text superimposed

14

on-screen: “And this was true on May 22, 2012, when Inglewood’s crooked Mayor,

15

James T. Butts Jr., tried to set up an alibi for his repeatedly helping violate State law

16

to hide evidence of serious Police Misconduct.” Ex. A-1 at 00:06-00:32. The video

17

annotates Mayor Butts’ remarks about the City’s response to Mr. Teixeira’s public

18

records request for information about an incident of alleged police misconduct,

19

constantly cutting in with original text commenting on the substance of the Mayor’s

20

speech as well as his body language (per the video’s thesis statement about

21

politicians giving visual tells when trying to hide something). Id. at 00:32-03:13.

22

● Video Four: https://www.youtube.com/watch?v=-5VQZrW7BVY

23

Video Four is titled “James T. Butts Jr. exploits the Murder of Fredrick Martin

24

for his own political benefit.” Teixeira Decl. ¶ 3(d); Ex. A-4 (video); B-4

25

(screenshot). The 15-minute video contrasts statements Mayor Butts made at a 2012

26

press conference, in which he assured the public that Mr. Martin’s killers would be

27

caught, and appeared to endorse a “series of reward offerings” for that purpose, with

28

the Mayor’s comments at a subsequent Council meeting casting doubt on whether
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

6

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 16 of 34 Page ID #:60

1

such rewards are effective and whether such crimes are likely to be solved. Ex. A-4.

2

The meeting clips used in this video are very short and heavily modified, such that no

3

more than three seconds ever goes by without original on-screen annotation. Id. at

4

05:59-14:57. Through such observations, Mr. Teixeira accuses Mayor Butts of using

5

the murder of Mr. Martin to grandstand for his own political gain. Id.

6

● Video Five: https://www.youtube.com/watch?v=MZKTiutCjdI

7

Video Five is titled “Mayor James Butts Lies About Being a Hypocrite.”

8

Teixeira Decl. ¶ 3(e); Ex. A-5 (video); B-5 (screenshot). The 11-minute, 38-second

9

video revisits the controversy regarding Mayor Butts’ residency at the time of his

10

election that was also addressed in Video One and Video Two, this time focusing on

11

remarks that the Mayor made about the issue during the 4/23/2013 Council meeting.

12

Ex. A-5. It presents more than a dozen short clips of the Mayor addressing criticism

13

about his conduct in connection with the election, and then responds to each of these

14

points through original narration, images of public records, superimposed text, and

15

footage of from other official proceedings. Id. It concludes with an image of the

16

Mayor giving testimony at the 7/20/2010 meeting, with on-screen text and narration

17

saying, “James Butts…hypocrite.” Id. at 11:33-11:38.

18

● Video Six: https://www.youtube.com/watch?v=a1p3l0OmhGM

19

Video Six is titled “Inglewood Mayor James Butts Lies, Hiding Dangerous

20

Traffic Problems At The Forum,” or “Mayor James T Butts Jr Lies, Hiding

21

Dangerous Traffic Problems After Forum Event!” Teixeira Decl. ¶ 3(f); Ex. A-6

22

(video); B-6 (screenshot). Most of the 15-minute video consists of original footage

23

shot by Mr. Teixeira documenting traffic problems near the Forum, a well-known

24

Inglewood event venue. Ex. A-6. The video juxtaposes footage of drivers making

25

illegal turns, nearly getting into accidents, and fighting with traffic officers as local

26

residents complain of major detours, with short clips of Mayor Butts positively

27

characterizing the traffic situation in his remarks at the 2/11/2014 Council meeting.

28

Id. In addition to the interspersed footage that is intended to contradict the Mayor’s
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

7

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 17 of 34 Page ID #:61

1

comments by example, the video also criticizes the Mayor’s remarks directly with

2

on-screen text superimposed over the meeting footage, and narration accusing the

3

Mayor of lying and trying to hide the traffic problems associated with the Forum. Id.

4
5

III.

PLAINTIFF’S COPYRIGHT CLAIM FAILS AS A MATTER OF LAW
A motion under Rule 12(b)(6) tests the legal sufficiency of the complaint.

6

Dismissal is warranted if no relief could be granted under any set of facts that could

7

be proved consistent with the allegations. See Bell Atlantic Corp. v. Twombly, 550

8

U.S. 544, 563 (2007). In making this determination, the court is not required to

9

construe “conclusory allegations of law and unwarranted inferences” in favor of the

10

nonmoving party. In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).

11

When ruling on a motion to dismiss, a court may consider materials referred to

12

in the complaint that form the basis of the claims, but that are not physically attached

13

to the pleading. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

14

(2007) (court deciding Rule 12(b)(6) motion may consider “documents incorporated

15

into the complaint by reference”). See also Knievel v. ESPN, 393 F.3d 1068, 1076-

16

77 (9th Cir. 2005) (12(b)(6) motion properly granted by considering web pages

17

referred to in the complaint and attached to defendant’s motion).

18

Under the incorporation-by-reference doctrine, this Court may consider the

19

content of the allegedly infringing videos and the underlying Council meeting videos,

20

as they are referred to in the Complaint at Paragraph 19, and their content forms the

21

basis for the City’s claim.4 See Zella v. E.W. Scripps, 529 F. Supp. 2d 1124, 1139

22

(C.D. Cal. 2007) (dismissing copyright infringement claim for failure to state a claim

23

based on the court’s review of episodes of a television show incorporated into the

24
4

A DVD with copies of the allegedly infringing videos is being concurrently
submitted as Exhibit A. See Notice of Lodging of DVDs, Ex. A; Teixeira Decl. ¶ 3.
26 Screenshots of the YouTube pages displaying these videos, also referenced in the
Complaint at Paragraph 19, are attached to the Teixeira Declaration as Exhibit B.
27 DVDs with copies of four of the underlying City Council meeting videos are being
concurrently submitted as Exhibits C-F. Id. ¶¶ 5-7; Laidman Decl. ¶ 2; Notice of
28 Lodging. See also Mr. Teixeira’s Concurrently Filed Request For Judicial Notice.
25

MOTION TO DISMISS
DWT 26446988v5 0200856-000001

8

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 18 of 34 Page ID #:62

1

pleadings by reference); Burnett v. Twentieth Century Fox Film Corp., 491 F. Supp.

2

2d 962, 966 (C.D. Cal. 2007) (granting Rule 12(b)(6) motion by considering content

3

of television program referenced in, but not attached to, plaintiff’s complaint for

4

copyright infringement); see also Daly v. Viacom, Inc., 238 F. Supp. 2d 1118, 1121-

5

22 (N.D. Cal. 2002) (considering content of television programs incorporated by

6

reference into complaint in dismissing claims under Rule 12(b)(6)).
As set forth below, Plaintiff’s claim against Mr. Teixeira is legally deficient

7
8

and should be dismissed with prejudice for several independent reasons.

9

A.

10

The City Has No Copyright Interest In Its Public Meeting Videos.
As a threshold matter, Inglewood’s claim fails because its video recordings of

11

its City Council meetings are not subject to copyright protection under California

12

law. While the Copyright Act precludes the federal government from copyrighting

13

its works, it is silent as to the works of state and local government. 17 U.S.C. § 105.

14

Consequently, “[s]tate law ‘determines whether [a public official] may claim a

15

copyright in his office’s creations,’” and “‘[e]ach state may determine whether the

16

works of its government entities may be copyrighted.’” County of Santa Clara v.

17

Superior Court, 170 Cal. App. 4th 1301, 1331 (2009) (quoting Microdecisions, Inc.

18

v. Skinner, 889 So.2d 871, 875-76 (2004)). See also Building Officials & Code

19

Adm. v. Code Technology, Inc., 628 F.2d 730, 735-36 (1st Cir. 1980) (“[w]orks of

20

state governments are therefore left available for copyright protection by the state or

21

the individual author, depending on state law and policy, and subject to exceptions

22

dictated by public policy…”) (emphasis added; quotation omitted).

23

As explained by one copyright treatise, “[s]tates may, of course, refuse to

24

permit assertion of copyright in state-created works; copyright is never imposed.” 4

25

William F. Patry, Patry on Copyright § 4:81 (2015). See also 1 Melville B. Nimmer

26

& David Nimmer, Nimmer on Copyright § 5.14 (2014) (whether works of state and

27

local government can be copyrighted is determined by “[t]urning to state law itself”).

28
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

9

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 19 of 34 Page ID #:63

1

Here, California law precludes the City from asserting copyright protection to restrict

2

the use of its video recordings of City Council meetings.

3

1.

The City Cannot Copyright Its Public Meeting Videos Because

4

California Law Does Not Specifically Authorize Such Protection.

5

The Complaint identifies no authority – and Mr. Teixeira is aware of none –

6

that authorizes the City to assert a copyright interest in what it concedes are public

7

records documenting public meetings by its legislative body. The only published

8

authority to address this issue squarely held that California governmental agencies

9

cannot assert copyright protection to restrict the use of such public records unless

10

state law provides “an affirmative grant of authority to obtain and hold copyrights.”

11

County of Santa Clara, 170 Cal. App. 4th at 1333 (original emphasis).

12

In County of Santa Clara, after the trial court ordered the disclosure of a

13

geographic information system (“GIS”) “basemap” under the California Public

14

Records Act (“CPRA”), the County argued that even if disclosure was required, it

15

held a copyright interest that allowed it to restrict the requester’s use of the basemap

16

through a licensing agreement. Id. at 1309. The Court of Appeal rejected this

17

argument and concluded that the County had no express authority for copyrighting

18

the basemap, and thus “unrestricted disclosure [was] required.” Id. at 1335.

19

The court recognized at the outset that a public agency’s assertion of copyright

20

protection restricts the public’s access to government information, and under the state

21

Constitution, “restrictions on disclosure are narrowly construed.” Id. at 1332 (citing

22

Cal. Const., art. I, § 3, subd. (b)). California law does not contain an exception

23

permitting agencies to limit the disclosure or dissemination of public records based

24

on copyright law, and only a single provision of the CPRA addresses copyright at all.

25

Id. at 1332. That provision, Cal. Gov’t Code § 6254.9, “acknowledge[s] copyright

26

protection for software only,” and “recognizes the availability of copyright protection

27
28
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

10

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

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1

for software in a proper case,” but “provides no statutory authority for asserting any

2

other copyright interest.” Id. at 1334 (emphasis added).5

3

The court also emphasized two distinctive features of the CPRA: (1) it “does

4

not allow limitations on access to a public record based upon the purpose for which

5

the record is being requested”; and (2) agencies are generally limited to charging no

6

more than the “direct costs of duplication” when providing copies of public records.

7

Id. at 1335 (citing Cal. Gov’t Code §§ 6253(b); 6257.5). The court favorably cited a

8

Florida appellate decision which held that a similar provision in Florida’s public

9

records law “overrides a governmental agency’s ability to claim a copyright in its

10

work unless the legislature has expressly authorized a public records exemption.” Id.

11

at 1335 (quoting Microdecisions, 889 So.2d at 876). “The same persuasive reasoning

12

applies to the interplay between copyright law and California’s public records law,

13

with the result that unrestricted disclosure is required.” Id. (emphasis added).

14

The court in County of Santa Clara bolstered its reasoning by noting that the

15

“Legislature knows how to explicitly authorize public bodies to secure copyrights

16

when it means to do so.” Id. at 1333. It cited examples of California statutes that

17

expressly authorize certain agencies to secure copyrights in particular enumerated

18

works, including Education Code §§ 1044, 35170, 72207 (authorizing county boards

19

of education, school district boards, and community college district boards to secure

20

copyrights), Health & Safety Code § 25201.11 (authorizing Department of Toxic

21

Substances Control to secure copyrights in certain works, including “video

22
23
24
25
26
27
28

5

In contrast to California’s public records law, which contains no exception
for copyright, the public records laws of several other states expressly authorize
agencies to obtain and hold copyrights. See, e.g., Colo. Rev. Stat. § 24–72–203(4)
(Colorado “political subdivisions are hereby specifically authorized to obtain and
enforce” copyrights); Nevada Rev. Stat. § 239.010(1) (Nevada public records law
expressly “does not supersede or in any manner affect the federal laws governing
copyrights”); South Dakota Codified Laws § 1–27–1 (copies of public records
available “unless federal copyright law otherwise provides”); Utah Code § 63G–2–
201(10)(b) (Utah public records law provision specifically reserving “rights or
protections granted to the governmental entity under federal copyright … law”).
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

11

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 21 of 34 Page ID #:65

1

recordings”), and Health & Safety Code § 13159.8 (State Fire Marshal authorized to

2

copyright promotional examinations). Id.6

3

That the Legislature has explicitly granted certain state and local agencies the

4

authority to secure copyrights in certain items necessarily leads to the conclusion that

5

the default rule is that California public agencies cannot obtain and hold copyrights

6

without such express authorization. Id.; See also Bruns v. E-Commerce Exchange,

7

Inc., 51 Cal. 4th 717, 727 (2011) (“failure to include a requirement in one statute is

8

significant when the legislative body has included that requirement in other

9

statutes”). If public agencies such as the City of Inglewood could assert copyright

10

protection in their public records absent such authority then all of these statutes

11

would be redundant. See United States v. Vidal, 504 F.3d 1072, 1081 (9th Cir. 2007)

12

(en banc) (“legislative enactments should not be construed to render their provisions

13

mere surplusage”; interpreting California statute accordingly) (quotation omitted).

14

Applying these principles, the court in County of Santa Clara held that because

15

the County could not identify any statute specifically authorizing it to copyright the

16

GIS basemap at issue or to condition its release on a licensing agreement, it “must be

17

disclosed as provided in the CPRA, without any such conditions or limitations.” Id.

18

at 1335-36 (emphasis added). Likewise, here the City of Inglewood has not

19

identified any statute authorizing it to secure a copyright in its City Council meeting

20

videos – because none exists – and therefore California law “overrides [its] ability to

21

claim a copyright in its work,” and “unrestricted disclosure is required.” Id.

22

2.

The City’s Assertion Of Copyright In Its Public Meeting Videos Is

23

Incompatible With Well-Established State Law And Public Policy.

24

Inglewood’s argument for copyright protection is actually far weaker than the

25

one at issue in County of Santa Clara, in which the County sought to copyright GIS

26
27

6

See also Health & Safety Code § 130251.15 (California Health and Human
Services
Agency authorized to copyright certain documents).
28
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

12

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 22 of 34 Page ID #:66

1

basemaps. Here, Inglewood is asserting copyright to block its citizen’s use of City

2

Council meeting videos to comment on governmental affairs. While the Brown Act

3

and CPRA do not explicitly address the issue of copyright (except as noted above),

4

they embody a state public policy that strongly favors the broadest possible access to

5

public records – especially public records like City Council meeting videos that go to

6

the very heart of democratic self-governance – and they are plainly incompatible

7

with the City’s attempted assertion of copyright protection to limit public access.

8

The City of Inglewood conducts and records its Council meetings pursuant to

9

the Brown Act, which mandates that “[a]ny audio or video recording of an open and

10

public meeting made for whatever purpose by or at the direction of the local agency

11

shall be subject to inspection pursuant to the California Public Records Act.” Cal.

12

Gov’t Code § 54953.5(b). It also requires that members of the public be permitted to

13

view public meeting videos “without charge on equipment made available by the

14

local agency.” Id. As public meeting videos are public records subject to disclosure

15

under the CPRA, public agencies such as the City are restricted from charging

16

members of the public who request copies of these videos more than the “direct costs

17

of duplication.” Cal. Gov’t Code § 6253(b). See also North County Parents Org. v.

18

Dep’t of Education, 23 Cal. App. 4th 144, 147 (1994) (under the CPRA “the cost

19

chargeable … for furnishing” copies of public records “is the cost of copying them”;

20

the Legislature specified “that the sole charge should be that for duplication”).7

21

These provisions are core features of a constitutional and statutory scheme that

22

“maximizes the public’s access to information.” Sierra Club v. Superior Court, 57

23

Cal. 4th 157, 175 (2013). With respect to the CPRA, “[m]aximum disclosure of the

24
7

As the City is barred from making any money from providing copies of these
videos, it has no need for the commercial incentive to engage in creative activity that
26 copyright law is designed to provide. See New Era Publications International, ApS
v. Henry Holt & Co., 695 F. Supp. 1493, 1526 (S.D.N.Y. 1988) (“[i]t is important to
27 recognize that the justification of the copyright law is the protection of the
commercial interest of the artist/author. It is not to coddle artistic vanity or to protect
28 secrecy, but to stimulate creation by protecting its rewards.”) (original emphasis).
25

MOTION TO DISMISS
DWT 26446988v5 0200856-000001

13

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 23 of 34 Page ID #:67

1

conduct of governmental operations was to be promoted by the Act.” CBS, Inc. v.

2

Block, 42 Cal. 3d 646, 651-52 (1986). Meanwhile, the Brown Act was intended “to

3

facilitate public participation in all phases of local government decisionmaking,” and

4

must be “construed liberally in favor of openness.” International Longshoremen’s &

5

Warehousemen’s Union v. L.A. Export Terminal, Inc., 69 Cal. App. 4th 287, 293-94

6

(1999). The Brown Act opens with a sweeping declaration of the law’s intent:

7

[T]he public commissions, boards and councils and the other public agencies

8

in this State exist to aid in the conduct of the people’s business … The people

9

of this State do not yield their sovereignty to the agencies which serve them …

10

The people insist on remaining informed so that they may retain control over

11

the instruments they have created.

12

Cal. Gov’t Code § 54950 (emphasis added). Voters enshrined the right of access to

13

public meetings and records in the state Constitution by approving Proposition 59 in

14

2004. See Sierra Club, 57 Cal. 4th at 166 (citing Cal. Const. Art. 1, § 3(b)(1)-(2)).8

15

Because the California Constitution, Brown Act, and CPRA maximize access

16

to public records so that citizens can scrutinize the actions of the governmental

17

agencies that they control, these constitutional and statutory requirements cannot be

18

reconciled with the City of Inglewood’s unprecedented effort to limit the public’s

19

access to records of City Council meetings through copyright.9

20
21

8

23

9

Tellingly, when the state Constitution was amended to incorporate the right
of
access
it expressly included exceptions for the right of privacy and the pre-existing
22
enumerated CPRA exemptions, but not for copyright. See Cal. Const. Art. 1, § 3.
24
25
26
27
28

The City’s attempt to copyright video recordings of the official proceedings
of its legislative body also runs afoul of more than a century of law making clear that
“judicial opinions and statutes are in the public domain and are not subject to
copyright.” Building Officials, 628 F.2d at 734. See also Wheaton v. Peters, 33 U.S.
(8 Pet.) 591 (1834); Banks v. Manchester, 128 U.S. 244 (1888). This line of
authority recognizes that “citizens are the authors of the law, and therefore its
owners, regardless of who actually drafts the provisions, because the law derives its
authority from the consent of the public, expressed through the democratic process.”
Building Officials, 628 F.2d at 734 (quotation omitted). The City Council meeting
videos at issue here are public records memorializing this “democratic process.” Id.
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

14

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 24 of 34 Page ID #:68

1

B.

Mr. Teixeira’s Use Of Clips From City Council Meetings In His Political

2

Commentaries Is Independently Protected By The Fair Use Doctrine.

3

Even assuming for the sake of argument that the City could claim a copyright

4

interest in its recordings of public meetings, its claim is independently barred by the

5

fair use doctrine. See 17 U.S.C. § 107 (Copyright Act provides that “the fair use of a

6

copyrighted work … for purposes such as criticism, comment, [or] news reporting …

7

is not an infringement of copyright”). Fair use balances “the interests of authors …

8

in the control and exploitation of their [works] … on the one hand, and society’s

9

competing interest in the free flow of ideas, information, and commerce on the other

10
11
12
13

hand[.]” Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
1.

Fair Use Is Applied Expansively Where, As Here, A Claim
Implicates Constitutionally Protected Political Speech.

First Amendment protections are “embodied” in the fair use doctrine. Golan v.

14

Holder, 132 S. Ct. 873, 890 (2012). The “‘considerable latitude for scholarship and

15

comment’ secured by the fair use doctrine protects the core value of free expression

16

from excessive litigation and undue restriction.” Bouchat v. Baltimore Ravens Ltd.

17

Partnership, 737 F.3d 932, 944 (4th Cir. 2013) (quoting Eldred v. Ashcroft, 537 U.S.

18

186, 220 (2003)). The “breadth of fair use varies and where vital First Amendment

19

concerns are implicated … that breadth expands and accords greater protection to

20

what might otherwise constitute an infringement.” Wojnarowicz v. American Family

21

Association, 745 F. Supp. 130, 147 (S.D.N.Y. 1990).

22

Here, the City’s copyright claim directly targets Mr. Teixeira’s exercise of

23

political speech that lies at the very heart of the First Amendment. As the Supreme

24

Court has explained:

25

Whatever differences may exist about interpretations of the First Amendment,

26

there is practically universal agreement that a major purpose of that

27

Amendment was to protect the free discussion of governmental affairs. This

28

of course includes discussions of candidates, structures and forms of
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

15

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 25 of 34 Page ID #:69

1

government, the manner in which government is operated or should be

2

operated, and all such matters relating to political processes.

3

Mills v. Alabama, 384 U.S. 214, 218-19 (1966). As the City’s claim targets Mr.

4

Teixeira’s use of public records of City Council meetings to discuss governmental

5

affairs and criticize elected officials, “vital First Amendment concerns are

6

implicated,” requiring the broadest possible application of the fair use doctrine.

7

Wojnarowicz, 745 F. Supp. at 147.

8

2.

9

The Ninth Circuit has held that an “assertion of fair use may be considered on

10

a motion to dismiss,” where it does not require the resolution of any disputed issues

11

of material fact. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 530 (9th Cir.

12

2008).10 Accordingly, courts routinely dismiss copyright claims at the pleading stage

13

where, as here, they can find fair use simply by reviewing the allegedly infringing

14

works, which are incorporated by reference into the complaint. In Burnett, for

15

example, the court granted a Rule 12(b)(6) motion to dismiss comedienne Carol

16

Burnett’s copyright claim stemming from a “crude” parody of her Charwoman

17

character on the television series “Family Guy.” 491 F. Supp. 2d at 971-972. After

18

reviewing the episode in question, the court determined that the use of Burnett’s

19

work was a fair use as a matter of law and dismissed her claim. Id. at 972.

20

Fair Use May Be Decided On A Motion To Dismiss.

Similarly, in Savage v. Council on American-Islamic Relations, 2008 U.S.

21

Dist. LEXIS 60545; 87 U.S.P.Q.2D 1730 (N.D. Cal. 2008), the court held that a

22

civil-liberties organization’s posting of a segment from the plaintiff’s radio show on

23

its website in order to criticize his anti-Muslim views and to encourage advertisers to

24

boycott his program was protected as a fair use, and granted the defendant’s Rule

25
10

See also Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148, 1151
(9th Cir. 1986) (“[i]f there are no genuine issues of material fact, or if, even after
27 resolving all issues in favor of the opposing party, a reasonable trier of fact can reach
only one conclusion, a court may conclude as a matter of law whether the challenged
28 use qualifies as a fair use of the copyrighted work”).
26

MOTION TO DISMISS
DWT 26446988v5 0200856-000001

16

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 26 of 34 Page ID #:70

1

12(c) motion. Id. at *25. See also Sedgwick Claims Management Servs. v.

2

Delsman, 2009 U.S. Dist. LEXIS 61825, at *20-21 (N.D. Cal. July 17, 2009) (finding

3

as matter of law that defendant’s use of two photographs of “WANTED” posters on

4

blog as part of a critical commentary was protected fair use; granting motion to

5

dismiss copyright-infringement claim); Righthaven v. Realty One Group, 2010 WL

6

4115413, *3 (D. Nev. Oct. 19, 2010) (granting defendants’ Rule 12(b)(6) motion to

7

dismiss copyright action based on fair use defense).

8

In Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012),

9

the Seventh Circuit affirmed the dismissal at the pleading stage of a copyright claim

10

based on a finding that it was an “obvious case of fair use.” Id. at 692. Because the

11

allegedly infringing video was incorporated by reference into the pleadings, the court

12

could “decide the merits of the claim without discovery or a trial” simply by viewing

13

the works themselves. Id. See also Cariou v. Prince, 714 F.3d 694, 707 (2d Cir.

14

2013) (explaining that the court in Brownmark “rejected the appellant’s argument

15

that copyright infringement claims cannot be disposed of at the motion-to-dismiss

16

stage”; holding that 25 works of art were “transformative as a matter of law” and

17

protected by fair use based on court’s review of the works themselves). Similarly,

18

this is also an “obvious case of fair use,” which the Court can decide by reviewing

19

the videos, the Complaint, and other materials incorporated by reference therein,

20

without having to resolve any disputed factual issues. Brownmark, 682 F.3d at 692.

21

3.

Each Statutory Factor Strongly Favors Fair Use.

22

Congress identified four non-exclusive factors to consider in determining

23

whether a particular use of a copyrighted work is a fair use: (1) the purpose and

24

character of the use, including whether such use is of a commercial nature or is for

25

nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the

26

amount and substantiality of the portion used in relation to the copyrighted work as a

27

whole; and (4) the effect of the use upon the potential market for or value of the

28

copyrighted work. 17 U.S.C. § 107(1)-(4). These factors must be considered
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

17

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 27 of 34 Page ID #:71

1

together, and none may be “treated in isolation.” Campbell, 510 U.S. at 578. As no

2

single factor is dispositive, “the moving party is not required to prevail on every

3

factor” to establish fair use, Norse v. Henry Holt and Co., 847 F. Supp. 142, 145

4

(N.D. Cal. 1994), and “need not ‘shut out’ her opponent on the four factor tally to

5

prevail.” Wright v. Warner Books, 953 F. 2d 731, 740 (2d Cir. 1991). Here, it is

6

clear from the videos themselves that each factor strongly favors fair use.
a.

7
8

The Purpose And Character Of The Use

Courts have recognized that “criticism of, and commentary on, [a] plaintiff’s

9

politics … is precisely what the Copyright Act envisions as a paradigmatic fair use.”

10

Dhillon v. Does 1-10, 2014 WL 722592, at *5 (N.D. Cal. Feb. 25, 2014). In Hustler,

11

after the magazine published a parody ad describing the Rev. Jerry Falwell

12

committing incest with his mother in an outhouse, Falwell displayed the piece on his

13

TV show, and the political lobbying group Moral Majority used it as a fundraising

14

mailer. 796 F.2d 1148 at 1149-50. Hustler sued them for copyright infringement,

15

but the District Court held that the claim was barred by the fair use doctrine, and the

16

Ninth Circuit affirmed. Id. at 1149. The court acknowledged that the defendants

17

used the Hustler piece in its entirety to solicit donations, and the use of the parody ad

18

on Falwell’s TV show “was also motivated by financial purposes.” Id. at 1152.

19

Nonetheless, the court held that this factor favored a finding of fair use because the

20

defendants “also used the copies to rebut the personal attack upon Falwell and make

21

a political comment about pornography.” Id. at 1153.11

22
23
24
25
26
27
28

11

If this action proceeds, Mr. Teixeira will show that his political commentary
videos are entirely non-commercial. Nonetheless, for purposes of this Motion, the
Hustler case makes clear that this factor favors fair use even taking as true the City’s
completely baseless assertion that he is somehow using City Council meeting clips to
“generate income.” Cmplt. ¶ 17. See also Campbell, 510 U.S. at 579 (“the more
transformative the new work, the less will be the significance of other factors, like
commercialism, that may weigh against a finding of fair use”); Consumers Union of
United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 1983)
(“[a]lthough the purpose of [the] use undoubtedly is commercial, this fact alone does
not defeat a fair use defense. Almost all newspapers, books and magazines are
published by commercial enterprises that seek a profit.”) (citation omitted).
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

18

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 28 of 34 Page ID #:72

1

Likewise, in National Rifle Ass’n of America v. Handgun Control Federation

2

of Ohio, 15 F.3d 559 (6th Cir. 1994), the Sixth Circuit held that fair use protected a

3

gun control group’s use of part of an NRA newsletter in its own publication that

4

supported legislation that the NRA opposed. Id. at 560. The court reasoned that the

5

“document was used primarily in exercising [the defendant’s] First Amendment

6

speech rights to comment on public issues and to petition the government regarding

7

legislation,” and the “scope of the fair use doctrine is wider when the use relates to

8

issues of public concern.” Id. at 562. And in Mattel Inc. v. Walking Mt. Prods., 353

9

F.3d 792, 802 (9th Cir. 2003), the Ninth Circuit held that the first fair use factor

10

“weighs heavily in favor of” an artist who used the plaintiff’s copyrighted Barbie

11

dolls in photographs that expressed “social criticism” of “Barbie’s influence on

12

gender roles and the position of women in society.” Id. at 802.12

13

As in these cases, the first factor weighs heavily in favor of fair use here

14

because Mr. Teixeira is engaged in core First Amendment activity by using portions

15

of the City Council meeting videos to criticize City officials and comment on matters

16

of public interest. See Exs. A-1-A-6; Section III.B.1, supra. In particular:

17

● Video One, Video Two, and Video Five concern Mayor Butts’ qualifications

18

for office, focusing on a controversy surrounding his residency at the time of the

19

2010 mayoral election. See Exs. A-1, A-2, A-5. Each video uses clips from City

20
21
22
23
24
25
26
27
28

12

See also Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1260 (2d Cir. 1986)
(fair use protected anti-abortion author’s use of portions of book “to make the case
against abortion”); Kienitz v. Sconnie Nation LLC, 965 F. Supp. 2d 1042, 1050
(W.D. Wis. 2013) (use of mayor’s photo on t-shirt for “political critique”); Caner v.
Autry, 16 F. Supp. 3d 689, 710 (W.D. Va. 2014) (using video “for the transformative
purpose of criticizing Plaintiff”); Dhillon, 2014 WL 722592, at *5 (use of photo on
website “in connection with an article criticizing the plaintiff’s political views”);
Wojnarowicz, 745 F. Supp. at 147 (use of plaintiff’s artwork in a pamphlet designed
“to stop public funding by the NEA of art works such as plaintiff’s”); Sedgwick,
2009 U.S. Dist. LEXIS 61825, at *15 (use of plaintiff’s photographs as “a vehicle for
publicizing and criticizing [plaintiff’s] alleged business practices”); Savage, 2008
U.S. Dist. LEXIS 60545, at *15-16 (use of audio of plaintiff’s radio show “in order
to criticize and comment on plaintiff’s statements and views”).
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

19

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 29 of 34 Page ID #:73

1

Council meetings to criticize Mayor Butts’ statements and conduct in connection

2

with this political controversy, including his conduct at these meetings. Id.

3

● Video Three uses clips from a Council meeting to criticize the City’s

4

response to Mr. Teixeira’s CPRA request about alleged police misconduct by

5

scrutinizing the Mayor’s remarks and conduct at this Council meeting. See Ex. A-3.

6

● Video Four juxtaposes the Mayor’s comments at a press conference about a

7

murder with his later comments on the matter at a City Council meeting in order to

8

accuse the Mayor of exploiting the case for his political benefit. See Ex. A-4.

9

● Video Six concerns dangerous traffic problems in the neighborhood

10

surrounding the Forum, and it uses brief clips from Council meetings to criticize and

11

evaluate Mayor Butts’ position and comments on the traffic issue. See Ex. A-6.

12

Mr. Teixeira’s use of the meeting footage is also highly transformative. In all

13

six videos, the clips are heavily modified with his original narration and on-screen

14

text, and juxtaposed with other material to emphasize Mr. Teixeira’s political

15

critiques of the Mayor. Exs. A-1-A-6. In this respect, this Court’s decision in

16

Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, 868 F.

17

Supp. 2d 962 (C.D. Cal. 2012), is on point. There, the defendant took verbatim

18

portions of the plaintiff’s video, which was aimed at de-stigmatizing abortion, and

19

spliced them together with graphic images and anti-abortion messages, among other

20

alterations. Id. at 966-67. “The new background soundtrack, the visuals, and the

21

juxtaposition of the new video clips with the original creates an entirely different

22

impact on the viewer. Thus, the accused Videos are transformative.” Id. at 978.

23

There can be no question from even the briefest review of Mr. Teixeira’s

24

critical political documentaries that they similarly transform the City’s unadorned

25

Council meeting videos into completely different works with an “entirely different

26

impact on the viewer.” Id. As “the goal of copyright … is generally furthered by the

27

creation of transformative works” such as these, they “lie at the heart of the fair use

28
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

20

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 30 of 34 Page ID #:74

1

doctrine’s guarantee of breathing space within the confines of copyright.” Campbell,

2

510 U.S. at 579. Consequently, this factor strongly favors a finding of fair use.

3
4

b.

The Nature Of The Allegedly Copyrighted Works

The “scope of fair use is greater when ‘informational’ as opposed to more

5

‘creative’ works are involved,” Hustler, 796 F.2d at 1153-54, as the “law generally

6

recognizes a greater need to disseminate factual works than works of fiction or

7

fantasy.” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 563

8

(1985). See also Swatch Group Management Services Ltd. v. Bloomberg L.P., 756

9

F.3d 73, 89 (2d Cir. 2014) (factor favored fair use where plaintiff’s copyright in a

10

financial earnings telephone call was “at best thin” as “the call’s sole purpose was to

11

convey financial information”). Here, the underlying works are the City’s videos of

12

its City Council meetings, virtually all of which are basic, unadorned presentations of

13

the official proceedings. Cmplt. ¶ 19; Exs. A, C-F; Section II, supra. As the City’s

14

copyright in these purely informational works is “at best thin” (assuming it has any

15

copyright interest at all), this factor favors fair use. Swatch Group, 756 F.3d at 89.

16
17

c.

The Amount And Substantiality Used

The third factor asks if the use was “reasonable in relation to the purpose of

18

the copying,” as “the extent of permissible copying varies with the purpose and

19

character of the use.” Campbell, 510 U.S. at 586-87. As such, it is closely related to

20

the first factor. Id. Thus in Northland, the court held that this factor favored fair use

21

even where the defendant used several minutes of plaintiff’s videos “verbatim” in its

22

own works because it did so to criticize the plaintiff and make a political point. 868

23

F. Supp. 2d at 980-82. As the court explained, the underlying video was “not easy to

24

conjure up in a sound byte or a single image,” and “video … should be afforded

25

greater leeway in determining whether a defendant borrowed in excess.” Id. at 981.

26

Similarly, in Savage, the court held that this factor favored fair use where the

27

defendants posted on their website a four minute, thirteen-second audio clip from the

28

plaintiff’s two-hour radio show, along with “a detailed criticism of plaintiff’s antiMOTION TO DISMISS
DWT 26446988v5 0200856-000001

21

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 31 of 34 Page ID #:75

1

Muslim” views. 2008 U.S. Dist. LEXIS 60545, at *3-4. The amount used “was

2

reasonably necessary to convey the extent of plaintiff’s comments” so that the

3

defendants could “comment on and rebut” them. Id. at *21. See also Swatch, 756

4

F.3d at 90 (news service’s use of an entire financial earnings call “was reasonable in

5

light of its purpose of disseminating important financial information”).13

6

As in these authorities, here it is readily apparent from the videos that the

7

amount of City Council meeting footage used by Mr. Teixeira is “reasonable in

8

relation to the purpose” of criticizing City officials’ political positions and conduct at

9

these official proceedings. Campbell, 510 U.S. at 586-87. The videos present brief

10

clips of the Mayor making statements and taking certain actions at the meetings, and

11

then directly respond to his remarks and conduct through on-screen text, narration,

12

and the juxtaposition of other footage and visual and audio materials. See Exs. A-1-

13

A-6. The videos use a reasonable amount of the footage that is necessary to convey

14

the substance of the Mayor’s positions and conduct to facilitate Mr. Teixeira’s

15

response. And in any event, the public meeting footage included in Mr. Teixeira’s

16

works, and in particular the few “verbatim” clips, are extremely brief in relation to

17

the City’s full meeting videos that typically lasted hours:

18

● Video One and Video Two are both about 15 minutes. See Section II, supra.

19

They each use clips from the City’s video of the 7/20/2010 Council meeting, which is

20

more than four hours and 40 minutes. Id. The longest any meeting clip runs in either

21

Video One or Video Two without some sort of audio or visual modification is 40

22

seconds; the next longest is about 15 seconds, and most of the unmodified clips are

23

10 seconds or less. See Exs. A-1-A-2.

24
13

In the closely analogous context of parody, courts “have consistently held
that a parody entitles its creator under the fair use doctrine to more extensive use of
26 the copied work than is ordinarily allowed[.]” Rogers v. Koons, 960 F.2d 301, 310
(2d Cir. 1992). See also Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 116
27 (2d Cir. 1998) (third factor has “little, if any, weight against fair use so long as the
first and fourth factors favor the parodist … even though the degree of copying of
28 protectable elements was extensive”).
25

MOTION TO DISMISS
DWT 26446988v5 0200856-000001

22

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 32 of 34 Page ID #:76

1

● Video Three is three minutes and 43 seconds, and it uses clips from the

2

5/22/2012 meeting video, which lasts more than three hours. See Section II, supra.

3

The longest any meeting video clip runs in Video Three without audio or visual

4

modification is about five seconds. See Ex. A-3.

5

● Video Four is 15 minutes. See Section II, supra. The longest any meeting

6

video clip runs in Video Three without audio or visual modification is about three

7

seconds. Id.; Ex. A-4.14

8
9

● Video Five is 11 minutes and 38 seconds, and it uses clips from the video of
the 4/23/2013 council meeting, which is more than two hours and 42 minutes long,

10

and the 7/20/2010 meeting, which is more than four hours and 40 minutes. See

11

Section II, supra. The longest any meeting video clip runs in Video Five without

12

audio or visual modification is about one minute and 13 seconds. See Ex. A-5.

13

● Video Six is 15 minutes, and it uses clips from the 2/11/2014 meeting video,

14

which is more than two hours and 37 minutes longer. See Section II, supra. The

15

longest any meeting video clip runs in Video Six without audio or visual

16

modification is about 11 seconds. See Ex. A-6.

17

As Mr. Teixeira’s videos use very brief clips from the City’s lengthy Council

18

meeting videos, and the amount used is reasonable in light of these transformative

19

works’ purpose of political criticism, this factor also favors a finding of fair use.
d.

20
21

The Effect On The Market

Not only does the fourth factor unequivocally favor fair use, this inquiry

22

exposes the completely baseless nature of this action. First, the City of Inglewood

23

cannot seriously claim any economic harm to the market or potential market for its

24
14

The City’s allegation that Video Four uses clips from a “4/11/2013” Council
meeting appears to be in error, and Mr. Teixeira has not yet been able to obtain the
26 City’s full video recording of the City Council meeting that apparently does appear in
Video Four. See Teixeira Decl. ¶ 9. But regardless of the precise length of the
27 underlying City Council meeting video, the third factor clearly favors fair use with
respect to Video Four as a matter of law as the clips that it uses are extremely brief
28 and reasonable in length in light of the highly transformative purpose of the work.
25

MOTION TO DISMISS
DWT 26446988v5 0200856-000001

23

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 33 of 34 Page ID #:77

1

City Council meeting videos because there can be no such market as a matter of law.

2

Because the City is legally prohibited from making money from the distribution of

3

these videos, there can be no “market” harmed by Mr. Teixeira’s use. See discussion

4

supra at Section III.A; Cal. Gov’t Code §§ 6253(b), 54953.5(b).

5

Second, Mr. Teixeira’s highly transformative videos, offering harsh political

6

critiques with titles like “Lying Politicians” and “James T. Butts Jr. exploits the

7

Murder of Fredrick Martin for his own political benefit,” are obviously no substitute

8

for the City’s unvarnished recordings of its public meetings. Compare Exs. A-1-A-6,

9

with Exs. C-F. As the Ninth Circuit explained in finding that the parody “When

10

Sonny Sniffs Glue” made fair use of the 1950s standard “When Sunny Gets Blue,”

11

this is “not a case in which commercial substitution is likely” because the “two works

12

do not fulfill the same demand.” Fisher, 794 F.2d at 438. See also Seltzer v. Green

13

Day, Inc., 725 F.3d 1170, 1179 (9th Cir. 2013) (“there is no reasonable argument that

14

conduct of the sort engaged in by [defendant] is a substitute for the primary market

15

for [plaintiff’s] art”); Kienitz, 965 F. Supp. 2d at 1054 (shirts mockingly using

16

mayor’s image “were not a substitute for and did not reduce the demand for”

17

straightforward portrait of the politician; “Anyone seeking a photographic portrait—

18

or even just an accurate representative image—of the mayor would not even consider

19

the garish image of the mayor splashed onto defendants’ … shirts.”).

20

Third, with no conceivable economic harm, the City is transparently bringing

21

this action because it finds Mr. Teixeira’s criticism offensive. But “[i]t is not

22

relevant that a use may damage the original’s value through criticism.” Northland,

23

868 F. Supp. 2d at 982. “Biting criticism suppresses demand; copyright infringement

24

usurps it,” and therefore for purposes of the fourth factor, “critical impact must be

25

excluded.” Fisher, 794 F.2d at 437-48. See also Savage, 2008 U.S. Dist. LEXIS

26

60545, at *24 (fourth factor “strongly favor[ed]” defendants where “the effect of

27

defendants’ usage is limited to the public criticism and condemnation of the ideas

28

within the original work, not market damage in the economic sense”).
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

24

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899

 Case 2:15-cv-01815-MWF-MRW Document 9 Filed 04/17/15 Page 34 of 34 Page ID #:78

Because Mr. Teixeira’s “biting criticism” of City officials’ comments and

1
2

conduct in the City Council meeting videos is no substitute for the original works,

3

which can have no commercial market as a matter of law, this factor weighs strongly

4

in favor of fair use, as do all of the statutory factors. Fisher, 794 F.2d at 438.

5
6

IV.

THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE
A claim should be dismissed with prejudice where “any amendment would be

7

an exercise in futility.” Steckman v. Hart Brewing, 143 F.3d 1293, 1298 (9th Cir.

8

1998). This is just such an instance: because the underlying works are not subject to

9

copyright protection as a matter of law, no amendment could cure the legal defects in

10

the City’s Complaint. See Section III.A, supra. And where, as here, it is apparent

11

from reviewing the allegedly infringing works themselves that they are obvious

12

examples of fair use, courts have not hesitated to dismiss copyright claims at the

13

pleading stage without leave to amend. See, e.g., Burnett, 491 F. Supp. 2d at 971-72

14

(granting motion to dismiss without leave to amend because factors “weigh strongly

15

in favor of a finding of fair use” and “plaintiffs could not allege any additional facts

16

which might cure defects in the complaint”); Savage, 2008 U.S. Dist. LEXIS 60545,

17

at *25-26 (same); Sedgwick, 2009 U.S. Dist. LEXIS 61825, at *20-21 (same).
V.

18
19

CONCLUSION

For all of the foregoing reasons, Mr. Teixeira respectfully requests that this

20

Court dismiss the City’s Complaint in its entirety, with prejudice.

21

DATED: April 16, 2015

22
23
24

DAVIS WRIGHT TREMAINE LLP
THOMAS R. BURKE
DAN LAIDMAN
DIANA PALACIOS
By: /s/ Dan Laidman
Dan Laidman

25
26

Attorneys for Defendant Joseph Teixeira

27
28
MOTION TO DISMISS
DWT 26446988v5 0200856-000001

25

DAVIS WRIGHT TREMAINE LLP
865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899