Assume everything is as in the original question, but let's also say there's some generic accompanying text in the email to the effect of "Check this out."
As nomenagentis mentions, the topic is debated. In particular, copyright is one of those areas that requires the judge to consider the particular facts of the case. In this scenario:
- The accompanying text likely doesn't meet the required creativity threshold for protection
- Judges will probably be split on whether the video attachment is protected. This is because they will run the facts through a "balancing test," and that test might tilt either way depending on how the judge weighs the importance of each factor
In running this test, the courts look to a number of sources for insight. I consider an expectation of privacy, property, and copyright in turn.
Expectation of Privacy
This line of thought derives from the Amendment IV right of "people to be secure in their persons, houses, papers, and effects" from unreasonable searches. Why start with unreasonable searches when the question is about people forwarding a friend's emails? Two reasons: 1) search and seizure opinions have had to refine the concept of privacy (as a result of having to figure out what law enforcement can use), and 2) the notion of privacy extends well beyond government searches.
In an early case the court drew a parallel between email and other forms of communication. It then went on to say "if a sender of first-class mail seals an envelope and addresses it to another person, the sender can reasonably expect the contents to remain private and free from the eyes of the police absent a search warrant founded upon probable cause [...] [O]nce the letter is received and opened, the destiny of the letter then lies in the control of the recipient of the letter, not the sender, absent some legal privilege." United States v. Maxwell, 45 M.J. 406 (Armed Forces 1996) referencing Mil. R. Evid. 501-06 and Gouled v. United States, 255 U.S. at 302 (1921).
The bold text is the common sense approach, and it gets quoted far outside Maxwell's context. See, e.g. United States v. Charbonneau, 979 F. Supp. 1177 (S.D. Ohio 1997) (email, "like a letter, cannot be afforded a reasonable expectation of privacy once that message is received.") Likewise, when an individual sends or mails letters, messages, or other information on the computer, that Fourth Amendment expectation of privacy diminishes incrementally. Id. and cf. Gouled.
Further, one lacks "clearly established privacy rights in e-mail content voluntarily transmitted over the Internet and stored at a third-party Internet service provider." Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010). Elsewhere, by registering for an account with their provider, users explicitly consented (under the Wiretap Act) to the practice of scanning and analyzing emails sent from non-users of the service. In re Yahoo Mail Litigation, 7 F. Supp. 3d 1016 (N.D. Cal. 2014).
All that to say: after clicking the send button, writers of emails have a diminished expectation of privacy.
The diminished expectation of ownership extends beyond the United States. In Fairstar Heavy Transp. N.V. v. Adkins, (EWHC 2012) the court could find no practical basis for holding that there should be property in the content of an email. In a business context, it went on to say there is no proprietary claim unless the content is confidential information belonging to a business, unless copyright subsists in the content that belongs to a business, or unless that business has a contractual right of ownership over the content.
Fairstar singles out copyright as an exception to claims based on a lack of proprietary, but it also bears mention since the video and text might be considered intellectual property. There are two broad approaches to defeating a copyright claim. The first is to claim the material wasn't copyright protected in the first place, and the second is to claim some exception, like the fair use doctrine.
For the first approach, 17 U.S.C. § 102(a) protects only original works of authorship, but originality does require a minimum level of creativity. The "amount of creative input by the author required to meet the originality standard is low," but "not negligible." Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003). Further, it's possible the "creative spark is utterly lacking or so trivial as to be virtually nonexistent." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). For example, in Stern v. Does, 978 F. Supp. 2d 1031 (C.D. Cal. 2011), an email on a listserv got redistributed without the author's consent but was found to lack the requisite creativity to constitute a valid copyright.
The Copyright Act doesn't define creativity or fair use, so this is one of those areas that relies on judgment. That's why it's hard to get a clear answer on a site like this: a judge would have to weigh the particular facts of the situation to determine whether there has been a violation. For the second approach--fair use--there are four factors to balance. I'm going to summarize the well-reasoned logic of Stern as it applies to each:
- Factor 1: Purpose and character of the use. In Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 579 (1994), the court said when the new work is more transformative, the other factors are less important. In the email forwarding case, the court found the purpose of the forwarding was transformative: it sought to notify others of the existence of the email, which was different than the author's original purpose (soliciting information). Stern at 1045. Likewise, the lack of a commercial use tends to eliminate "the presumption of unfairness." Worldwide Church at 1117.
- Factor 2: Nature of the copyrighted work. The more factual the work, the weaker the claim against fair use. In Stern at 1046, the email was largely informational.
- Factor 3: Amount and substantiality of the portion taken. The baseline rule is that "wholesale copying of copyrighted material precludes application of the fair use doctrine." Stern at 1046 citing Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir. 1983). Likewise, Wall Data Inc. v. L.A. County Sheriff's Dep't, 447 F.3d 769, 778 (9th Cir. 2006) found that verbatim copying of the entire copyrighted work weighs against a finding of fair use. Id. citing Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2000). As with most things, there are exceptions that do permit wholesale copying. For example, in the email forwarding case, the court thought this factor was neutral because the email was short and the intended use was reasonable.
- Factor 4: Effect of the use upon the potential market. In Stern at 1048, there was no market impact since it was a private email.
Back to the case at hand
Note: the analysis would be different if the content were illegal, however the video is "innocuous."
Concerning originality, it's likely the video meets the level of creativity required for protection. It is three minutes long and probably required some effort, at a minimum, in framing the subjects. The text probably doesn't meet the required creative bar. As to fair use, the first factor would look at the purpose of the forwarding. Here the forwarding probably isn't transformative in purpose, but I'm assuming it is non-commercial. As to factor two, a family video is probably less informative, while the accompanying text is factual and directive in nature. Factor three asks us to look at a verbatim copying of the content. This is likely not an issue for the accompanying text, but it does appear to weigh against the video content. The last factor isn't relevant since we assume the friend has no commercial market for the home video.
Because a judge must weigh the factors, it might go either way:
- One judge might hone in on the fact that the video meets the creativity bar and may argue the video forwarding fails fair use because the video isn't informational in nature and the forwarding was verbatim rather than derivative. This judge would probably concede the text forwarding was permissible.
- However, a second judge might say the first fair use factor is more important than the other three, arguing the non-commercial purpose dominates the non-informational nature in factor two and the verbatim character in factor three. This judge would add steam to the argument by citing the diminished expectation of privacy and the lack of property rights that might be said to ensue when copyright fails. This judge might make a final argument related to public policy: it is arguably difficult to police electronic traffic once it is sent, and the party in the best position to ensure the video's control is the initial sender.
united-states copyright privacy