Pictometry International Corp., a leader in geo-referenced aerial image capture and visual-centric data analytics, recently prevailed in a precedent-setting unanimous decision issued by the Connecticut Supreme Court addressing the interaction of federal copyright protection, trade secrets, and the Connecticut Freedom of Information Act. See Pictometry International Corporation v. Freedom of Information Commission, 307 Conn. 648, ___ A2d ___, 2012 Conn. LEXIS 5 (2013).  The case has ramifications for all copyright holders licensing intellectual property to government agencies.

This case is the first in the nation to examine the interplay between a citizen’s right to copy or obtain a copy of public records and the limitations placed upon such rights by federal copyright law.  Issues of first impression include: (1) whether Connecticut’s Freedom of Information Act (FOIA) is preempted by the Copyright Act to the extent that FOIA permits the copying and distribution of copyrighted materials without the permission of the copyright owner, and (2) even if preemption applies, whether the “fair use” doctrine may be used to override the copyright owner’s rights under the Copyright act and to permit the copying and distribution of copyrighted materials without the permission of the copyright owner.   

As a result of this case, copyright holders (at least those in Connecticut) may now license their intellectual property to governmental agencies secure in the knowledge that their copyrighted materials are exempt from the public’s right to copy or obtain copies of such materials under the state’s FOIA.  The case also makes clear that neither the agency empowered to oversee the implementation of the state’s FOIA nor a state court may consider whether the “fair use” doctrine can be used to override the protections afforded under the Copyright Act.   Lastly, the Connecticut decision makes clear that a state agency is not required to bear extraordinary costs in providing information, but rather may pass its costs, including any license fees owing to the copyright owner, to the party requesting the information.

Background of the Case

Pictometry had contracted with the Connecticut Department of Information Technology (DOIT) to provide a license to the Connecticut Department of Environmental Protection (DEP) for the use of certain of Pictometry’s computerized aerial photographic images and geo-referenced data of the state of Connecticut. 

These cases were heard by the Connecticut Supreme Court on appeal from a series of decisions originally stemming from a proceeding initiated by Stephen Whitaker before the state’s FOIC.

Under the state’s FOIA, Whitaker sought to obtain copies of Pictometry’s images, metadata, and software which Pictometry had licensed to DOIT for use by a number of other state agencies.  Following an evidentiary hearing, the FOIC denied Whitaker’s request for the software and metadata, holding they were exempt from the disclosure and copying requirements of FOIA as trade secrets of Pictometry.  While upholding Pictometry’s claim that the images were copyrighted, however, the FOIC held that the Copyright Act did not provide an exemption from copying and ordered the images to be reproduced for Whitaker at a nominal fee.  Pictometry appealed the FOIC's ruling to the state superior court, which upheld the FOIC’s decision.  In July 2010, Pictometry appealed the superior court’s ruling to the Connecticut Supreme Court.  In a unanimous decision, the Connecticut Supreme Court has ruled in Pictometry’s favor.

The Connecticut Supreme Court construed the state’s FOIA and held that in the event of a conflict between state law and the federal Copyright Act, the Copyright Act prevails.

Specifically, the Connecticut Supreme Court held that:

  1. The library of aerial images that Pictometry licensed to DOIT is protected by copyright, thereby exempting the images from the copying provisions of Connecticut’s FOIA.  Additionally, the metadata associated with each image and the proprietary software developed by Pictometry that is used to permit the making of measurements on an image were trade secrets and therefore exempt from the disclosure and copying requirements of FOIA.
  2. The federal Copyright Act is a "federal law" under the Connecticut FOIA and exempts public records that consist of copyrighted materials from the copying requirements, but not the disclosure requirements, of Connecticut FOIA.
  3. Neither the state Freedom of Information Commission (FOIC) nor a state court may consider whether the "fair use" exemption under the federal Copyright Act permits a third party to obtain copies of copyrighted materials of a state vendor.
  4. Since the underlying agreement between Pictometry, as licensor, and DOIT, as licensee, permits certain state agencies to provide copies of the copyrighted images to a requesting party, conditioned upon the payment of an image license fee by the state agency to Pictometry, that license fee may be passed on to the requesting party by the state agency.

Lessons for Copyright Holders

Copyright holders licensing their materials to any federal, state, or local government agency should make certain that all agreements recite that all copyrightable works including images, metadata, and software are protected from copying and distribution under the federal Copyright Act and that nothing in any state FOIA may abrogate those copyright interests.  If the copyright holder is willing to permit its licensee to sell copies of any of the copyrighted materials, it should consider the following strategies.

  • Specifying an appropriate fee structure for the copies.
  • Placing restrictions on the type or volume of the materials that can be sold.
  • Requiring the purchaser to acknowledge that the materials may only be used for specified, non-commercial uses and that any other use will constitute a violation of the copyright holder’s interest for which the purchaser may be held liable.
  • Requiring the agency to notify the copyright holder immediately upon receipt by the agency of a FOIA request seeking the disclosure and/or copying of any proprietary materials.