LA court wrong to claim copyright of Britney Spears’ testimony, experts say

The Los Angeles County Superior Court likely abused the copyright law when it filed a claim of ownership with YouTube to remove a recording of Britney Spears testifying in court last week.

California courts have the legal authority to prohibit the media and public from recording court hearings but copyright experts said courts don't own sworn testimony.

Due to social distancing requirements, the Los Angeles court, like many others, installed remote attendance technology during the pandemic shutdowns, allowing members of the public to listen to court hearings from home. The court made it clear that no recording of any kind was allowed and that one could be held in contempt if caught recording.

However, the court also recognized in a recent news release that it expected "abuses of the court's orders prohibiting recording, filming, and distribution of proceedings" may occur.

After Spears made an impassioned, remote speech in her conservatorship case, the judge at the hearing shut off the remote audio. Shortly thereafter, Presiding Judge Eric Taylor discontinued the remote hearing program, saying among other things that "widespread breaches by the public in a recent proceeding highlighted the need to return to in-person, open court proceedings."

Meanwhile, a YouTuber called Jack Frost posted a video entitled "Britney Spears FULL Conservatorship Hearing (Leaked HQ Audio) Opening Testimony" on June 23. YouTube later removed the video, displaying a message saying: "This video is no longer available due to a copyright claim by the Superior Court of California, County of Los Angeles."

Court Communications Director Ann E. Donlan emailed the Daily Journal Friday evening, stating:

"The copyright notices were the result of error, and I understand YouTube has removed them. However, YouTube was informed the recordings were made in violation of a court order prohibiting such recording of the proceedings."

The video link was restored midday Friday, however the question still remained whether the court ever had a valid right, under copyright law, to request the video be taken down in the first place.

Commenting Friday, several copyright experts, including Santa Clara University School of Law Professor Tyler Ochoa, said the court did not own the copyright to the recording and under copyright law should not have requested that YouTube take it down.

"They don't have a claim on her speech. It would be a claim on the recording of her speech but that would only be valid if they added some original content to it," Ochoa said. "Her speech is not original to the court, her speech is hers."

The fact Frost recorded Spears' testimony in violation of the court's warning does not bolster the court's copyright claim, Ochoa said.

"What's happened is, there's a rule of court that says you can't record court proceedings without permission. Someone has violated that rule of court. ... The judge can punish them and hold them in contempt of court but because the courtroom is virtual now, that's going to be hard to enforce," Ochoa said. "However the copyright claim strikes me as incredibly weak because the only claims of originality in a sound recording are the performances and the sound engineers. We don't have either of those. Nobody's performing and nobody's a sound engineer."

As the "gatekeeper," Ochoa said, YouTube took the video down because of a provision in federal copyright law which says the platform is not liable for what its users post. If somebody makes a copyright claim, YouTube automatically takes the video down and notifies the person who uploaded it, he said. If the person who posted it wants to contest the claim, they can file a counter notice and YouTube will repost the video within 10 to 14 days unless the alleged copyright owner files a lawsuit, in which case YouTube will again take the video down until the lawsuit is resolved.

Los Angeles copyright expert Jeffrey D. Goldman of Jeffer Mangels Butler & Mitchell LLP, said while he agreed the court does not have a valid copyright claim to Spears' speech, under the U.S. Supreme Court case Allen v. Roy A. Cooper states cannot be liable for copyright infringement under the doctrine of sovereign immunity. So while the court may have been wrong to claim ownership and request the takedown, it likely will not face liability under copyright law.

A wrongful Digital Millennium Copyright Act notice "gives somebody the right to sue and seek damages, but you can't sue a state for infringement and I assume that probably would mean you can't sue a state for a wrongful DMCA takedown," Goldman said.

The state "possibly could be sued in an action for declaratory relief, solely seeking to determine that the state does not own the copyright," Goldman said. "But that's an issue of first impression. I don't think anyone's ever tried to do that."

When it comes to the question of whether anyone at all has a copyright claim to the recorded testimony, UCLA School of Law professor Neil W. Netanel said because Spears had written the speech before giving her testimony, she would likely have the strongest claim to the copyright.

"On the other hand, it's arguably fair use for someone to record something like this," Netanel said. "The speech has been made in an open court in a legal proceeding that has significant public interest involved. So, I think the person who recorded it might have a fair use defense for recording it."