ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF
Audio tapes, lyric sheets, and other materials submitted to State
Song Subcommittee in conjunction with 1998 State Song Competition
constitute "official records" subject to Act's disclosure
requirements. Copyrighted nature of work does not preclude
reproduction and release in response to Freedom of Information Act
request or other activity within exclusive rights granted under
Copyright Act if copyright owner has given express or implied consent
or if activity constitutes fair use of work. FOIA does not require
reproduction and dissemination of copyrighted material that would
violate federal copyright law. Copies of copyrighted works released
by Subcommittee should include copy of copyright notice, or, if not
apparent, cover letter notifying requester that work may be protected
by copyright, and that permission should be obtained from copyright
owner before making any further copies, public distribution or other
copyright-protected use of work.
The Honorable Emmett W. Hanger Jr.
Member, Senate of Virginia
September 23, 1998
You inquire regarding application of The Virginia Freedom of
Information Act1 to submissions made by
contestants to the 1998 State Song Competition.
You advise that 1998 House Joint Resolution 107 directs the
Virginia Advisory Commission on Intergovernmental Relations (the
"Commission") to establish a subcommittee to recommend a new state
song.2 You advise further that the
Commission established the State Song Subcommittee ("Subcommittee")
at its May 18, 1998, meeting.
You relate that the Subcommittee established a 1998 State Song
Competition inviting individuals to submit entries for consideration.
Such entries must include a completed and signed Official Entry Form,
an audio cassette of the song, and a lyric sheet. Contestants are
apprised by notation on the Official Entry Form that their songs may
be reproduced for the judges of the competition. A release form,
which apprises contestants that any song selected as one of the
finalists in the competition will be posted on the Internet, must be
signed by any and all songwriters who own the copyright to the
You also advise that the Subcommittee anticipates that it will
confront requests from the public and the media for copies of the
materials submitted by contestants. Some of the materials are
copyrighted and others are not.
You first inquire whether materials, such as audio tapes and lyric
sheets, submitted to the Subcommittee in conjunction with the 1998
State Song Competition may be released under The Virginia Freedom of
Information Act, and whether there is any distinction between
copyrighted and noncopyrighted material.
The Virginia Freedom of Information Act establishes a general rule
that all records of public bodies are open to inspection and copying
by citizens of the Commonwealth, "[e]xcept as otherwise
specifically provided by law."4 The Act
contains a strong policy statement in favor of public access to
government records, providing that "[a]ny exception or
exemption from applicability shall be narrowly construed in order
that no thing which should be public may be hidden from any
person."5 The use of the word "shall"
in a statute ordinarily implies that its provisions are
Section 2.1-341 of the Code of Virginia, a portion of The Virginia
Freedom of Information Act, broadly defines the term "official
records" to mean
all written or printed books, papers, letters, documents,
maps and tapes, photographs, films, sound recordings, reports or
other material, regardless of physical form or characteristics,
prepared, owned, or in the possession of a public body or any
employee or officer of a public body in the transaction of public
All official records are open for inspection and copying during
regular office hours, unless otherwise specifically provided by
law.7 The Freedom of Information Act
does not require requests for official records to be made in writing
or to mention the Act.8 One of the
following responses to a request for official records must be made:
(1) the public body must provide the official records to the
requester within five work days, or if "practically impossible" to
produce, or determine the availability of, such records within that
period, the public body must so notify the requester and shall have
seven additional work days within which to respond; or (2) if an
exemption applies to all, or only to some , of the records, the
public body must provide a written explanation describing why the
records will not be produced, citing the applicable statutory
exemption, and must provide the official records that are not
segregatable due to the exemption.9
The Commission is a public body, subject to the Act's disclosure
requirements.10 The definition of
"official records" in the Act includes "sound recordings ... or other
material, regardless of physical form or characteristics."11
The Freedom of Information Act requires that "[a]ny exception
or exemption from applicability shall be narrowly
construed."12 Consequently, I must
conclude that the audio tapes, lyric sheets, and other materials
submitted to the Subcommittee in conjunction with the 1998 State Song
Competition clearly are "official records" under the Act.
Section 2.1-342(B) neither specifically exempts nor excepts such
materials from disclosure pursuant to a request made under the Act.
Consequently, you also inquire regarding any distinction between
copyrighted and noncopyrighted material. For the purposes of this
opinion, I shall assume that some of the material received by the
Subcommittee is in the public domain and, therefore, clearly must be
released, while other such material is protected by copyright. I note
that persons who create original works of authorship generally enjoy
copyright protection13 even if no
copyright notice is affixed to such work.14
In the case of Sony Corporation v. Universal City Studios,
Inc.,15 the Supreme Court of the
United States notes that
[c]copyright protection "subsists ... in original
works of authorship fixed in any tangible medium of expression."
17 U.S.C. section 102(a) (1982 ed.). This protection has never
accorded the copyright owner complete control over all possible
uses of his work. Rather, the Copyright Act grants the copyright
holder "exclusive" rights to use and to authorize the use of his
work in five16 qualified ways,
including reproduction of the copyrighted work in copies. All
reproductions of the work, however, are not within the exclusive
domain of the copyright owner; some are in the public domain. Any
individual may reproduce a copyrighted work for a "fair
use";17 the copyright owner does
not possess the exclusive right to such a use. "Anyone who
violates any of the exclusive rights of the copyright owner," that
is, anyone who trespasses into his exclusive domain by using or
authorizing the use of the copyrighted work in one of the
five18 ways set forth in the
statute, "is an infringer of the copyright." section 501(a).
Conversely, anyone who is authorized by the copyright owner to use
the copyrighted work in a way specified in the statute or who
makes a fair use of the work is not an infringer of the copyright
with respect to such use.19
Therefore, the copyrighted nature of a work does not preclude
reproduction and release in response to a Freedom of Information Act
request or other activity within the exclusive rights granted under
the Copyright Act if the copyright owner has given his express or
implied consent or if the activity constitutes a fair use of the
Whatever presumption of consent that might arise under ordinary
circumstances from a copyright owner's submission of original work as
part of the documentation of a public body's transaction of public
business, for purposes of this opinion, I shall assume that the
Subcommittee has entered into a contract with the copyright owner
specifying that copies of material submitted for the competition may
be made only for the judges, unless the work is selected as a
finalist. The Subcommittee may, of course, choose to contact the
copyright owners for a broader consent.21
The Subcommittee may choose not to contact the copyright owner if
it determines that certain requests for materials will be for
purposes that constitute a "fair use." Such a determination will,
however, depend on the facts and circumstances of the individual
requests.22 The Freedom of Information
Act does not require reproduction and dissemination under
circumstances that would violate the Copyright Act.23
Your final inquiry concerns the question of responsibility the
Subcommittee may have, if any, regarding the use by entities to whom
the contestants' materials have been released, if such materials are
subject to disclosure under The Virginia Freedom of Information
For purposes of this inquiry, I shall assume that the Subcommittee
has obtained a copyright owner's consent to release a copy of the
work or that the Subcommittee has determined such release to be a
"fair use" that is authorized by the Copyright Act.24
Copies that are released should include a copy of a notice of
copyright. If such notice is not apparent, it would be advisable to
include a cover letter or other form of notification to the requester
that the work may be protected by copyright, and that permission
should be obtained from the copyright owner before making any further
copies, public distribution or other copyright-protected use of the
1. Va. Code. Ann. sections 2.1-340 to
2. "As part of its responsibilities, the
Commission shall establish a subcommittee to make a recommendation
for a new official state song, which among other things invokes
visual images of the historic, natural and scenic beauty that the
Commonwealth's citizens celebrate....
"The Commission shall complete its work in time to submit its
findings and recommendations to the Governor and the 1999 Session of
the General Assembly as provided in the procedures of the Division of
Legislative Automated Systems for the processing of legislative
documents." 1998 Va. Acts H.J. Res. 107.
3. You have provided copies of (1) the
Commission's "1998 Virginia State Song Competition Official Entry
Form"; (2) the Commission Secretary's August 17, 1998, memorandum
acknowledging receipt of contestants' 1998 State Song Competition
entries; and (3) the Commission's "1998 State Song Competition
Internet Release Form."
4. Section 2.1-342(A).
5. Section 2.1-340.1 (emphasis added).
6. See Andrews v. Shepherd, 201 Va. 412,
414-15, 111 S.E.2d 279, 282 (1959) ("shall" in statute indicates
legislative intent to impose imperative duty); see also Schmidt v.
City of Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965);
Op. Va. Att'y Gen.: 1997 at 16, 17; 1996 at 20, 21; 1991 at 126,
7. Section 2.1-342(A).
9. Section 2.1-342(A)(1)-(4).
10. Section 2.1-341 (defining "public body").
12. Section 2.1-340.1.
13. See 17 U.S.C.A. section 102(a) (West
14. See 17 U.S.C.A. § 401 (West 1996)
(stating that "a notice of copyright . . . may be placed on publicly
distributed copies from which the [copyrighted] work can be
15. 464 U.S. 417 (1984).
16. The Copyright Act currently sets forth six
exclusive ways for copyright owners to authorize the use of their
work. Under the Act, a copyright owner has authority
"(1) to reproduce the copyrighted work in copies or
"(2) to prepare derivative works based upon the copyrighted
"(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership, or by
rental, lease, or lending;
"(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly;
"(5) in the case of literary, musical, dramatic, and
choreoghraphic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work
"(6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital audio
transmission." 17 U.S.C.A. § 106 (West 1996 & Supp.
17. "In determining whether the use made of a
work in any particular case is a fair use the factors to be
considered shall include-
"(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit
"(2) the nature of the copyrighted work;
"(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
"(4) the effect of the use upon the potential market for or
value of the copyrighted work." 17 U.S.C.A. section 107 (West
18. See supra note 16.
19. 464 U.S. at 432-33 (citations omitted)
20. Compare 17 U.S.C.A. section 106 with section
107 (West 1996).
21. This may be the most reliable course to avoid
potential liability for violation of any copyrights for handling the
requests that you anticipate receiving.
22. See supra note 17.
23. See section 2.1-342(A) (providing for
inspection and copying of official records, "[e]xcept as
otherwise specifically provided by law").
24. I assume also that your release of the copy
is not with the knowledge that the recipient intends to infringe the
copyright. Release under such circumstances could result in liability
as a "contributory" infringer. See Gershwin Publishing Corp. v.
Columbia Artists Man., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)
(noting that one who has knowledge of infringing activity, and
induces, causes or materially contributes to infringing conduct of
another, may be liable as "contributory" infringer).