Re: Copyright ownership of bin Laden video?

>>> disenberg[_at_]gigalaw.com 12/13/01 12:36PM >>>
I suppose they're purely academic questions, but just out of curiosity: Who owns the copyright in the Osama bin Laden videotape released today by the U.S. government? Are the networks that air it in its entirety protected by the fair-use privilege? Does U.S. copyright law apply? Does Afghanistan have any copyright laws? <<<<<

Copyright is still a collection of national laws, which apply in the place where the alleged infringement takes place. In other words, U.S. law applies to uses in the U.S., French law applies to uses in France, etc. I will address use of the videotape in the U.S.

Under U.S. law, the "author" of the videotape owns the copyright. This would be the person who shot the video, unless it is a work made for hire.

[First caveat: If this was a filmed performance of a work of authorship, the author of the underlying work and the performers might have a claim to be joint authors; but I am assuming it was simply a video record of an unscripted conversation.]

[Second caveat: Under Itar-Tass, U.S. law determines ownership of the copyright (as opposed to validity and infringement) by the law of the source country of the work. I have no idea what Afghan law or Islamic law would provide, but I seriously doubt they have a work made for hire doctrine. I happen to think Itar-Tass was wrongly decided (or at least there is a serious question); but in any case, under the rule of doubt, U.S. courts will apply U.S. law in the absence of any proof of the content of foreign law.]

If the person who shot the video was a U.S. government employee acting within his/her official duties, then it is a U.S. government work which may be copied freely. If not, then the U.S. government would own the copyright only if there was a written transfer of ownership. Absent that, any reproduction or public performance of the videotape is infringing unless it is either authorized or a fair use [i.e., an exception in sections 107-122].

How did the U.S. government get the tape? It was either shot by someone who cooperated with the U.S. government, or it was stolen (or found) by someone who cooperated with the U.S. government. If the former, the person probably granted an implied license to distribute it in turning it over. [Possession of the tape does not by itself include the right to reproduce it, but under these circumstances it is hard to imagine that the cooperating author did not intend for the U.S. to distribute it further.] If the latter, it is almost certainly a fair use to distribute the tape both as a piece of evidence of a crime and as a newsworthy item. Ditto for the networks. If someone started duplicating the tape and selling copies of it, that probably would not qualify as a fair use.

An academic question indeed. [Try to imagine a member of the Taliban filing an action for copyright infringement against the U.S. government in the U.S. Court of Claims.] But who better to answer an academic question than an academic?

Tyler T. Ochoa
Associate Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School Received on Fri Dec 14 2001 - 21:56:29 GMT