If the State of North Carolina keeps backup CDs of a commissioned sound sculpture in its building, can the public force the State to hand over copies under the public records law?
Plain-English summary
The North Carolina Arts Council had commissioned artist Bill Fontana to create a sound sculpture for the Revenue Building rotunda in Raleigh. The contract (paragraph 13) expressly stated that Fontana retained the copyright. Fontana was willing to deposit backup CDs with the Council in case the originals were damaged or technology forced an equipment upgrade, but only if the Council could promise that the backups would not be played outside the building, copied, or made available to the public.
Special Deputy AG Charles J. Murray, joined by Chief Deputy AG Andrew A. Vanore, Jr., concluded that the Council's possession of the backup CDs would not subject them to public-records access. The reasoning bypassed the usual threshold question (is the object a "public record" at all) and went directly to federal preemption: the federal Copyright Act, 15 USC 101 et seq., defines the scope of an artist's copyright, and under the Supremacy Clause a state law cannot enlarge a copyright holder's obligations beyond what federal law allows. Because Fontana owned the copyright, the State could duplicate the CDs only as the contract permitted or with his express consent.
The AG drew an analogy to commercial software a local government licenses. The information a government runs through commercial software is generally a public record, and a requester can demand an electronic copy of the underlying data. But the commercial program itself stays protected by copyright; the government's license to run the program does not transfer to a citizen who asks for it. A public-records request cannot override the software vendor's exclusive copyright. The same logic applied to Fontana's sound sculpture: the State possessed the recording but did not own it.
The AG also addressed a separate question about the News and Observer's CITYLINE phone service playing a two-minute segment of the sculpture with a lead-in by the Council. Because the artist had voluntarily agreed to that use and the Council would consent under paragraph 13(a) of the contract, the AG saw no problem with the arrangement.
The opinion closed with a clarification of a letter opinion by Durham copyright lawyer Susan Freya Olive that the Council had circulated. Olive's letter, read in isolation, could have been mistaken to mean that the N.C. Public Records Act exempts records merely because they are the property of a private person. The AG corrected that reading: private ownership is only one of four factors required to invoke the trade-secret exemption in N.C.G.S. § 132-1.2, as construed in N.C. Electric Membership Corp. v. N.C. Dept. of Econ. & Comm. Dev., 108 N.C. App. 711, 425 S.E.2d 440 (1993).
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The federal preemption logic at the core of this opinion has not changed in any meaningful way. The Copyright Act still controls duplication, and the Supremacy Clause still prevents a state public-records statute from forcing the disclosure of copies a copyright holder has not authorized. The N.C. Public Records Act has been amended several times since 1993 (the trade-secret carve-out in § 132-1.2 has been refined), and N.C.G.S. § 143-408.1 (state art commissions) has been amended. Anyone applying this opinion to a current request involving copyrighted state-commissioned work should pull the current text of the relevant statutes and check for later cases on government-acquired copyrighted content.
Common questions
Q: Why didn't the AG go through the usual "is this a public record" analysis?
A: Because federal copyright preempts. Even if the backup CDs technically met the definition of a public record under G.S. 132-1, the State could not lawfully copy them without the artist's permission. The Public Records Act gives the public a right to access records the government can lawfully share; it does not authorize the government to commit copyright infringement.
Q: Did the State own the sound sculpture?
A: No. The contract said the artist retained the copyright. The State owned the physical CDs and had a license to play the sculpture in the Revenue Building, but it did not own the underlying work. The AG characterized this as the State holding "a right to play the sound sculpture upon certain terms and conditions" while the artist retained "ownership" through copyright.
Q: Does this mean a citizen could never get a copy of a state-commissioned artwork?
A: It depends on the contract. If the State or its commissioning agency had taken the copyright as a work-for-hire (with proper written documentation under federal copyright law), the work would belong to the State and the Public Records Act analysis would proceed normally. Here, the contract expressly preserved the artist's copyright, which is the controlling fact.
Q: What about the commercial-software analogy?
A: The AG borrowed an example from a 1990 Popular Government article by David M. Lawrence of the Institute of Government. A government's commercial software license does not transfer to a public-records requester. The data the software helps the government create can be public, but the software itself stays protected. The sound sculpture mapped onto the "software" half of that analogy.
Q: Did the AG say anything about fair use?
A: Only briefly. The opinion noted that fair use and integrity-of-the-artwork issues would arise between the artist and someone who copied or played the recording without permission, not between the Council and a public-records requester. The Council's correct posture was simply to refuse to participate in any unauthorized duplication.
Q: What was the clarification about Ms. Olive's letter?
A: Olive had written that a public record can be exempt from disclosure when it is the property of a private person. The AG warned that her language, in isolation, oversells the exemption. N.C.G.S. § 132-1.2 (the trade-secret carve-out) requires four factors to be present, not just private ownership. The AG cited N.C. Electric Membership Corp. (108 N.C. App. 711) for the four-factor analysis.
Background and statutory framework
North Carolina's Public Records Act, codified at G.S. 132-1 et seq., presumes that records made or received by state agencies are public. The Act has a number of carve-outs. N.C.G.S. § 132-1.2 protects certain confidential information, including trade secrets that meet a four-factor test (proprietary value, secrecy, identification to a private person, and reasonable measures to maintain secrecy).
The federal Copyright Act, codified primarily at 17 USC §§ 101-1332 (the AG's "15 USC" citation reflects an older numbering convention), grants the creator of an original work of authorship the exclusive right to reproduce, distribute, publicly display, and prepare derivative works. The Act expressly preempts state law that purports to grant equivalent rights to anyone other than the copyright holder. 17 USC § 301.
When the State commissions a creative work, the parties can decide by contract who holds the copyright. If the State wants outright ownership, the contract must say so in writing as a work made for hire under 17 USC § 101 (assuming the work fits one of the eligible categories) or there must be a written assignment of copyright. Anything short of that leaves the copyright with the artist. The Fontana contract took the second path: the State got delivery and a license to play, the artist kept the copyright.
The intersection of public-records law and copyright is not new. Courts and AG offices around the country have generally held that a public-records statute cannot compel the disclosure of copyrighted material in a manner that would constitute copyright infringement, because federal copyright law preempts conflicting state disclosure obligations. The Fontana opinion is consistent with that line of authority.
Citations
- N.C.G.S. § 132-1.2 (trade-secret confidentiality, four-factor test)
- N.C.G.S. § 143-408.1 (state arts commissions)
- 15 USC 101 et seq. (federal Copyright Act, in the AG's older numbering)
- 15 USC 102(1) (subject matter of copyright protection)
- N.C. Electric Membership Corp. v. N.C. Dept. of Econ. & Comm. Dev., 108 N.C. App. 711, 425 S.E.2d 440 (1993) (four factors required for the trade-secret exemption to apply)
Source
- Landing page: https://ncdoj.gov/opinions/sound-sculpture-project-public-records-act-copyright-statutes/
Original opinion text
- The sound sculpture was designed to be heard in the Revenue Building rotunda and surrounding spaces and the artist feels the integrity of the work would be jeopardized if the CDs were played outside of that space using different equipment.
Mr. Fontana is willing to give the Council back-up CDs to have in case those now in the equipment are damaged or deteriorate over time. Also, technology is improving so rapidly the Council may want to upgrade equipment in the future and begin with a new set of CDs.
The artist will not leave the Council back-up CDs unless the Council can assure him that they will be used only for the purpose of replenishing his artwork. For conservation purposes, the Council would need to hold these CDs in a climate-controlled space and the CDs would need to remain sealed and protected. If this space belongs to the State of North Carolina, could the public have access to these back-up CDs through the public records law? If so, what form of access?
It is our opinion that the possession of the back-up CDs by the Council would not subject the CDs to access by the public under the public records laws of North Carolina. While most opinions on the public records laws of North Carolina begin with the threshold question of whether or not the object in question is a "public record," that analysis is not necessary or helpful in addressing your first issue, because the federal law of copyright (15 USC 101 et seq.) controls. Those statutes define the artist's copyright interest, and because of the supremacy of federal law, a state law may not alter or amend the federal statute. Federal law states that the creator of an intellectual work, including sound recordings, is the owner of the copyright unless there is a written transfer of the copyright. Paragraph 13 of the contract between the artist and the Council clearly states that the artist shall retain the copyright to the sound sculpture. Therefore, the State of North Carolina may make copies of the CDs only according to the terms of the contract or with the express agreement of the artist. 15 USC 102(1). This office agrees with the conclusions in the letter opinions received by the Public Affairs Office of the Department of Cultural Resources from Ms. Susan Freya Olive, a Durham attorney specializing in copyright law, dated September 16, 1993, and C. Miller Sigmon, President of the North Carolina Volunteer Lawyers for the Arts, dated September 10, 1993, attached to your memorandum, to the effect that the artist's copyright interest precludes the duplication of the CDs without his permission.
In addition, an analogy may be drawn in situations where the State has purchased copyrighted computer software with restrictions on its duplication. In the Fall 1990 edition of Popular Government, David M. Lawrence of the Institute of Government discusses the application of the public records law to commercial software purchased by a local government as follows:
Assume, to begin with, that a local government has a large data base on a personal computer that it has created and that it accesses and manipulates through a commercial data-base program. We can assume that the information that the local government has placed in the data base is public record, and, as discussed above, it is probable that a citizen has a right to an electronic copy of the data base. But the data base is of no use unless it can be accessed, and for that task the citizen also will need a copy of the commercial software. That program also will be included within the files of the government's computer system. Does that fact make the commercial program a public record, which the citizen also has the right to copy? Probably not. Such software is usually protected by copyright, and persons who purchase such software promise not to allow general copying of it by others. That the purchaser of the program is a government, subject to public records laws, probably does not lessen the rights of the copyright holder, just as an author does not lose the rights of copyright because his book has been purchased by a public library. David M. Lawrence, Popular Government, Fall 1990, p.22.
In the commercial software situation discussed above, there is no inappropriate use of the software; nevertheless, copying the software without permission of the owner is a violation of the owner's copyright interest. It is the protection afforded to the owner of the software or the artist by having retained the copyright that prohibits unauthorized duplication, even if the copy were to be used under circumstances that did not affect its integrity. The issues of injury to the integrity of the artwork and of the "fair use" exemption, which are thoroughly discussed by Ms. Olive and Mr. Sigmon, arise between the artist and an individual or organization that, without permission of the artist, either copied or played a recording, e.g., an unauthorized sound recording made in the lobby of the Revenue Building. The Council should not participate or assist in any duplication or reproduction not authorized by the express agreement between it and the artist because to do so would violate the artist's copyright interest. Therefore, the fact that the State possesses back-up CDs does not mean that the CDs can be copied by the State or anyone else except in compliance with the contract or with the permission of the artist, regardless of the circumstances under which a complete or partial copy might be played.
This conclusion is consistent with the general policy of the Public Records Act that, in general, the public has "ownership" of, and should have access to, all information "owned" by the government. Here, the State does not own the sound sculpture. It possesses only a right to play the sound sculpture upon certain terms and conditions. The artist, Mr. Fontana, retains "ownership" of the sculpture through the copyright. The State, therefore, does not have the legal right to provide public access to the sculpture under the Public Records Act.
- The second issue is whether any problems arise for the Council if it provides the lead-in for the playing of a two-minute segment of the Sound Sculpture, voluntarily provided by the artist for such purpose, by the News and Observer on CITYLINE.
It appears that the playing of the segment will be permitted by an agreement between the artist and the newspaper, and we presume that the Council will consent pursuant to paragraph 13(a) of the contract. Under these circumstances, we perceive no problems with the arrangement.
A clarification of one point should be made in regard to Ms. Olive's letter opinion, a portion of which, if taken out of context, might be interpreted as stating that there is an exemption under the N.C. Public Records Act based upon the sole fact that a public record is the property of a private person. The fact that property belongs to a private person is just one of four factors that must be present for the exemption set out in N.C.G.S. § 132-1.2 to apply. N.C. Electric Membership Corp. v. N.C. Dept. of Econ. & Comm. Dev., 108 N.C. App. 711, 425 S.E.2d 440 (1993).
Charles J. Murray
Special Deputy Attorney General
Andrew A. Vanore, Jr.
Chief Deputy Attorney General