Update on Litigation about Kendi Videotape — Mixed Result, And Perhaps Not a Final Ruling

Introduction

I have reported on this litigation in three prior posts:  In January when the suit was filed; in March after an interim ruling; and in early April after another hearing.  The earlier posts can be seen HERE, HERE, and HERE.

Briefly, we filed suit against the Fairfax County School Board in January in the Fairfax County General District Court after it refused our Freedom of Information Act (FOIA) request for a copy of a videotape of an appearance by Ibram X. Kendi at the kick-off session of the 2020-21 school year in August 2020.  Kendi is a highly controversial author and speaker about race relations.  He claims, among other things, that America’s white majority is inherently racist, that systemic racist is pervasive, that race-neutral policies are racist, that government institutions have a duty to adopt policies leading to equal outcomes for all racial groups, not just equality of opportunity, that standardized tests are racist because they produce unequal outcomes, and that capitalism is racist because it leads to or sustains unequal incomes.

The School Board agreed to pay Kendi $20,000 for a one-hour, remote appearance from his office in Boston.  The session was to consist of introductions by school officials, a 45 minute presentation by Kendi, and a 15 minute question-and-answer period.  The session was to be attended by about 1,500 Fairfax County school administrators and principals via Zoom.  The title of Kendi’s presentation was “Cultivating an Anti-Racist School Community.”

In its contract with Kendi, the School Board agreed that Kendi would have sole intellectual property rights in the content of his appearance.  The contract stipulated that the School Board could videotape the event, but only for its internal and archival purposes.  It agreed not to release the recording to the public.  Thus, the School Board claimed that it couldn’t lawfully provide a copy in response to my FOIA request because it was copyrighted by Kendi, and Kendi hadn’t authorized its release.

I challenged the refusal on several grounds.  One of the main arguments was that the School Board had no authority to enter into a contract with Kendi that gave him control over a recording of his appearance, and thus that the agreement was unenforceable.  Our point was that the school system’s kick-off session was organized by, paid for by, attended by, and participated in by a government entity and its employees.   The videotape was made by the government entity at taxpayer expense.  The videotape is unquestionably a “public record” within the meaning of the FOIA, and I argued that the School Board could not lawfully avoid its duty to release it by entering into a contract in which it agreed that Kendi would control access to it.

I also argued that even if the videotape was lawfully copyrighted by Kendi, I was nonetheless entitled to it under a copyright doctrine called “fair use.”

At a hearing on April 4, the judge focused on the “fair use” issue.  She felt that the record wasn’t sufficiently developed on that point, so she directed me to send a letter to the School Board, explaining why I wanted the videotape and what I intended to do with it.  The School Board was directed to respond to the “fair use” point after getting my information.  The Court scheduled a follow-up hearing for today, May 11.  I sent my letter to the Board the next day, April 5.  On April 8 the Board’s lawyer asked for more information, and I responded the same day.  The exchange of correspondence is HERE, HERE and HERE.

Today’s Court Decision

At a hearing today, May 11, the court disagreed with my argument that the School Board couldn’t lawfully enter into a contract acknowledging that Kendi would have intellectual property rights in the videotape.  Also, on the “fair use” issue, the court decided that the School Board had the better argument.  However, the court also held that Kendi’s copyright wouldn’t be violated if I go to the School Board’s administrative offices to view the videotape there, without getting a copy of it.  So I at least got half a loaf, or perhaps only one-third of one since I won’t be able to share the video itself with others on this website.

I will go to the school system’s offices to view the videotape, and I will try to take good notes about what the school officials said when introducing Kendi, what Kendi said in his presentation, and how school personnel interacted with Kendi during the Q&A session.  I will give a report on this website concerning what I learn.

I also may appeal today’s decision.  The case has been in the lowest level county court … the General District Court.  The losing side in that court has a right to appeal to the higher-level trial court … the Circuit Court.  In that forum, the issues are tried anew, without any presumption that the General District Court rendered the correct decision.  I strongly disagree with today’s ruling.  I will make a decision on appealing after I see the video.