INTRODUCTION

I saw this question online and decided to answer it here on my blog. It raises some very interesting and timely questions about the scope and reach of copyright law in our modern age.

Many people want to know, is police footage or vehicle cam video from law enforcement in the public domain. I would state "it depends." From Wikipedia:

The copyright status of works produced by the governments of states, territories, and municipalities in the United States varies. Copyright law is federal in the United States.

Federal law expressly denies U.S. copyright protection to two types of government works: works of the U.S. federal government itself, and all edicts of any government regardless of level or whether or not foreign.

[1] Other than addressing these "edicts of government", U.S. federal law does not address copyrights of U.S. state and local government.

[2] The U.S. Copyright Office gives guidance that "Works (other than edicts of government) prepared by officers or employees of any government (except the U.S. Government) including State, local, or foreign governments, are subject to registration if they are otherwise copyrightable."

[3] This leaves such works with the usual copyright protection unless applicable state or local law declares otherwise. Those laws, in turn, vary widely: some state and local governments expressly claim copyright over some or all of their copyrightable works, others waive copyright and declare that all government-produced documents are in the public domain, and yet others have not clearly defined their policies on the question.

Thus, federal law enforcement, such as CIA and FBI bodycam footage, is not likely to be subject to copyright, while your state local police, county Sheriff's offices, and other state or local level agencies might claim some sort of copyright protection over these videos. But realize, not everything can be copyright registered, there has to be some degree of "creativity," and unedited scanning or surveillance of crime scenes may or may not fit that bill.

CREATIVE WORKS OF AUTHORSHIP?

The first thing a copyright lawyer looks at is whether or not the digital content at issue is subject to copyright protection. In other words, would the United States Copyright Office allow registration for a bodycam video (or even a surveillance video for that matter as the two seem closely related to me).

In order for copyright protection to be possible, there must be a "creative work of authorship fixed in a tangible medium of expression." The first thing that hits me is a bodycam video is really just a video attached to a body or a vehicle that captures whatever it sees or follows. There may be some creative aspects to determining "what" to follow (selection of material), or even in the editing process if the video is later edited for some reason. Does this amount to an "authorship" type of "Work" that copyright laws are designed to protect? It is hard to say, and I have not seen any case law on this or copyright registrations involving bodycam footage, but I suspect people have tried.

QUERY: Even cars and vehicles such as BMW and Caddilac Escalade have video capture features. Is this content copyrightable? For the same reasons, if this content is not edited, is it really creative enough to warrant federal copyright registration and a right to sue infringers?

For the purpose of this article, let's assume that bodycam footage can be subject to copyright registration. If so, the holder of the copyright can watermark their video (see more about 1202 CMI removal claims), and post it online and send takedown notices, issue a monetization claim, and even file a lawsuit over alleged infringement. So, my best advice is to always be very careful. I have seen cases where a YouTube channel can be hit with three or more claims all at once over allegedly infringing videos, putting the entire channel at issue. It can be extremely difficult to get YouTube to change its mind so you need to be super careful about what you post in the first place and make sure no one will try to make a copyright strike against you.

PUBLIC PROPERTY (PUBLIC DOMAIN)?

Another question that arises with bodycam video content produced by state or federal employees, is whether or not the state or federal entity that shot the video is entitled to any copyright protection at all. When published, works created by federal government employees in the course of carrying out official government responsibilities automatically enter the public domain in the United States. This was touched on above. However, state and local governments have the authority to establish their own criteria for determining whether their own works are protected by copyright.

My general rule of thumb is that federal content is our right to request and use as taxpayers to use. I am not sure why the same rule does not apply to state, county or local city content, but such is life and you should always check as it may not be subject to claimed copyright (do you see a copyright symbol? If all else fails request written permission with an email). Either way, however, I always check to see if there are any copyright notices on any content before I decide to use it for fair use purposes, typically for me.

According to Epic.org:

California considers body-camera videos public records and requires law enforcement to release video to the public no later than 45 days after an incident is recorded (ex. police video obtained through a public records or FOIA request).

This seems to suggest there is a strong case that public surveillance or police scene footage is not subject to copyright protection if done by a law enforcement personnel in their official capacity. I have not heard of any law enforcement officers (state or federal) seeking copyright protection for their law enforcement videos, but who knows for sure? It would be interesting if they could and have done this. Thus, always look to see if a claim can be made that the Work at issue is a public recording in the public domain, that cannot be copyrighted.

Attorney Steve Tip: The best bet is to try to source your police bodycam footage directly from the public source. Do a public records request and if needed, and/or request permission to use the video. If they do not respond, discuss your project with a copyright fair use attorney such as our firm.

WHAT ABOUT CCTV SURVEILLANCE VIDEO, CAN THAT BE COPYRIGHTED?

Southwest Casino & Hotel Corp. v. Flyingman (W.D.Okla. Feb. 13, 2008, No. CIV-07-949-C) 2008 U.S.Dist.LEXIS 10786, at *1-2.

FACTUAL BACKGROUND

Plaintiff alleges that it is a corporation previously hired by the Cheyenne-Arapaho Tribes ("the Tribes") under a contract to manage two of the Tribes' casinos in Oklahoma. Defendant Thunderbull, an individual and a member of the Tribes, worked at one of the casinos as a surveillance employee. According to Plaintiff, Thunderbull made a copy of surveillance camera footage that showed several elected officials of the Tribes cashing checks issued by Plaintiff, and she removed the copied footage from the casino. Thunderbull was subsequently terminated and then hired by Defendant Flyingman, an individual who is the Governor of the Tribes. Plaintiff further alleges that the copied surveillance camera footage ("footage") has been posted to YouTube.com and also widely distributed and posted by Flyingman and possibly others. Defendant Flyingman admits that he distributed surveillance camera footage of elected officials cashing checks at the casino.

The issue was resolved without being decided if copyright could apply or not. Wikipedia notes:

"Security cameras, webcams, camera traps and other pre-positioned recording devices capture whatever happens to take place in their field of view. This raises the question as to whether their recordings are an original and therefore copyrighted work. For example, "[i]f a security camera mounted in a lobby, recording 24 hours a day, captured a dramatic event, the video could be uncopyrighted."

To date, this question remains untested in the United States. In the 2008 United States district court case Southwest Casino and Hotel Corp. vs Flyingman, the casino filed suit for copyright infringement on the use of their surveillance video, but the defendant argued in a motion that the surveillance video lacked the sufficient creativity needed to secure copyright protection. However, the case was never heard as a separate tribal court ruled that the tribes, rather than the casino, owned the footage.

Attorney Steve® Thoughts: An unmanned camera, to me, amounts to a machine (not a human) creating the video. This seems to be the same reason the United States Copyright Office does not seem very willing to provide copyright registration for creations, art, drawings, images, books, and other creative content generated by Artificial Intelligence (AI). There is no human authorship. However, if the unmanned video is later edited for posting on the internet (clipping, adding music and soundtracks, voiceovers, etc.), this could change the status. It is important to keep in mind that in the United States the modicum of creativity doctrine established in Feist Publications, Inc. v. Rural Telephone Service Co applies, which means, only a minimal standard of creativity is required to have copyright registrable content.

ADDING A WATERMARK AND CLAIMING COPYRIGHT PROTECTION?

What if you obtain a law enforcement bodycam image via a FOIA claim or state public records request and edit, add graphics, music, sound effects and comment on the video with a voiceover. Can this "transformation" of the video allow you to then copyright protect the video as a new transformative work based on an underlying public domain work? Possibly so.

Where you have an existing work, however, or a public domain work, you can only get copyright protection for the new transformative elements added (not the underlying work). See this from the copyright office:

Also see Circular 14 from the United States Copyright Office:

So, while you could take a public domain work, or a federal government work and conceivably register the new work with the copyright office, the registration will NOT protect the underlying existing work, and anyone is still free to use that, and any takedown attempt in this regard should be closely scrutinized.

FAIR USE?

Even if a person or entity is able to claim copyright protection for bodycam video, this does not mean they have rights to prevent the public from making a "fair use" of certain limited portion of their video, for example, for purposes of comment or criticism. The fair use laws allow you to make limited use of copyrighted material without being deemed copyright infringement. There is a four factor test courts employ to make this determination.

I GOT A DMCA TAKEDOWN, NOW WHAT?

Did your Bodycam video post get a DMCA takedown or monetization claim, and are you thinking of filing a counter-notice? My advice is to be very careful, "only fools rush in." Read my article on personal jurisdiction when you file a counter-notification.

Filing a counter-notification releases your name and other information (which can subject one to doxxing), and you agree to be sued in a certain jurisdiction, such as California. Courts have upheld this type of consent to personal jurisdiction in the Northern District of California (where Google/YouTube is located).

However, if you are facing one or more strikes, you need to have a copyright fair use lawyer in your state review the claims before taking any action, such as filing a potential counter-notice. Your entire life work and channel can be at risk. This is not the time to try to save money by "doing it yourself."

HOW TO OBTAIN POLICE BODYCAM VIDEO FOOTAGE - FOIA

If the video at issue is maintained by a federal agency (see list of federal agencies here), you can file what's called a Freedom of Information Act request. For bodycam video generated and maintained by a state agency (see list of California State agencies here), a public records request would be the avenue to pursue. I will be posting a video shortly that discusses the FOIA process and common grounds for denial.