Getting copyright wrong: Nashville judge cites copyright law to withhold Covenant school shooter’s writings

A Nashville judge held that the journal entries of school shooter Audrey Hale, who went by Aiden, can’t be released under state open records law because to do so would violate copyright law. If you’re confused, that’s probably because you understand copyright law, open records law, or both. 

In the United States, copyright is an economic right. While those are important, they should not generally outweigh compelling public interests — like knowing how we missed the motives that led to the murder of three children and three adults. 

I recently wrote about the backstory of this case on FIRE President and CEO Greg Lukianoff’s Eternally Radical Idea Substack newsletter, but let’s walk through how we got here. 

Some background

In March 2023, Hale, a transgender man, killed three children and three adults in a Christian elementary school in Nashville before being shot and killed by law enforcement. Nashville police found a notebook in Hale’s car and more writing in Hale’s bedroom. Law enforcement describes the collected writing as “journals,” logging the shooter’s thoughts leading up to the crime. 

That May, local news website the Tennessee Star, its Editor-in-Chief Michael Patrick Leahy, and five other individuals and organizations sued the Nashville police, seeking copies of the written evidence police collected during the investigation. (For ease of reference, I’m calling them “the journals,” although truthfully, we don’t have any idea what these writings are or what form they take.)  

A month after the lawsuit began, Hale’s parents signed over whatever intellectual property interest they had in the documents to a group created by parents of children at the Covenant School. In that document, Hale’s parents describe their reasons for making the transfer: 

(1) preventing the dissemination of the Writings, (2) preventing the copying, distribution, publication, or unauthorized use of any of the Writings, and (3) for the purpose of seeking damages on behalf of the Children caused by any infringement, misappropriation, unauthorized use of any of the Intellectual Property Rights.

The group that received the copyright agrees with Hale’s parents that the documents should not come to light. As reported in The Tennessean, in an April hearing the group’s attorney read the following statement from one of the parents: “May this evil die with the shooter. May we deny her any victory in death. May her name, her face, her writings be blotted from history.”

(This transfer itself has become a source of conflict. The contract assumes that Hale died without a will and that Hale’s parents, as next-of-kin, inherited whatever property, intellectual or otherwise, existed. But last month, the Tennessee Star reported that among the leaked writings is a suicide note that says, “PLEASE READ MY WILL.”)

After the transfer, the parents’ group intervened in the Tennessee Star’s open records lawsuit, arguing Nashville police would violate the group’s copyright if open records law forced the state to release Hale’s journals to the public. The parent group also argued that releasing the writings could inspire copycats. A parent of one of Hale’s victims filed a declaration stating, “The pathway to obtain notoriety from murdering children must be removed, starting here, with this shooter, who I will never, ever name.”

As I explained in the ERI post, not disclosing the writings is a bad idea. Their absence didn’t stop one would-be copycat from finding inspiration and likely contributed to confusion when a fake manifesto circulated. There’s no limit on the number of fakes that could be distributed, and each could inspire future crimes. Most of all, the risk that crimes like this could be repeated is an argument for why we need to understand what happened in as full detail as possible.  

In the latest news, last month the Tennessee Star began publishing a series of stories based on reporting from 80 pages of leaked documents containing Hale’s writings. Chancellor I’Ashea Myles scheduled a hearing for Star editor Leahy to “show cause” for why he shouldn’t be held in contempt of her prior orders limiting how leaked documents could be used in the courtroom. (Tennessee Chancery Court judges are called “chancellors,” and to anticipate your follow-up question, a Chancery Court “may modify the application of strict legal rules and adapt relief to the circumstances of individual cases.”) A finding of contempt could mean jail time for Leahy. I wrote about that earlier for ERI, explaining why Myles’ prior orders did not prevent such news coverage — in short, because that would make her orders unconstitutional prior restraints. 

On July 4, Chancellor Myles released a 60-page ruling on the open records request which, in relevant part, affirmed that copyright law could be used to prevent the release of Hale’s writings. (Specifically, Myles held that state open records law was preempted by federal copyright law.) 

For the reasons I’ve outlined above, that’s bad policy. It’s also bad copyright law.

How Myles misused copyright law

Harvard law professor Rebecca Tushnet, quoted in The New York Times, gave the best and most succinct explanation of why this isn’t how copyright law works: “If the rule is, if something is copyrighted that overrides the public records law, then there’s basically no more public records law.” She’s not exaggerating. 

Under copyright law, a work is entitled to copyright protection from the moment it’s written down or recorded. Open records laws, including Tennessee’s, require people and entities to disclose records “made or received” by the government including those that take the form of books, photographs, or other written or recorded material. In other words, the vast majority of material in the possession of state governments is protected by some form of copyright. If we take Myles’ ruling at face value, the only way we’ll ever know about police investigations into wrongdoing is if the perpetrator is Steamboat Willie. 

The vast majority of material in the possession of state governments is protected by some form of copyright. If we take Myles’ ruling at face value, the only way we’ll ever know about police investigations into wrongdoing is if the perpetrator is Steamboat Willie. 

The deeper we go into this rabbit hole, the more absurd the outcomes are. And that’s because copyright law is meant to enable the commercial use of works and incentivize the creation of future works (for example, to ensure that the Beatles are paid enough from “Revolver” that they decide to record “Abbey Road”), not to bury evidence in mass homicides. And while it’s a fun thought-exercise for lawyers to consider all the ways the ruling misapplies the concept of copyright writ large (e.g., to what extent ownership of disembodied intellectual property should limit identifying the characteristics of physical objects adjacent to crime scenes), it’s probably sufficient to say this ain’t it. 

Copyright law and open records laws have coexisted for decades, and their interaction isn’t typically viewed as binary — meaning, materials can be protected by a copyright and subject to disclosure. The Department of Justice has guidelines for how copyright law and the federal Freedom of Information Act are meant to interact, and the guidelines explain it succinctly at the end: “For those copyrighted materials to which Exemption 4 [trade secrets] is inapplicable, the position of the Department of Justice is that the release of such materials under the FOIA is a defensible ‘fair use.’”

Quoting more from those guidelines: 

In fact, reproduction of a copyrighted document by a government entity for a purpose that is not “commercially exploitive of the copyright holder’s market,” such as copying a work to use as evidence in a judicial proceeding, has been held to constitute a “fair use.” Indeed, the leading commentator on copyright law has found it “inconceivable that any court would hold such reproduction to constitute infringement.” [Citations omitted.]

Inconceivable, indeed. Chancellor Myles hand-waved at this guidance, stating that the Tennessee law is not patterned after the federal FOIA. Instead, she cites other state courts for authority (though the Tennessee law isn’t patterned after any of these state laws either, since none of them existed when Tennessee wrote its law). Even these state court rulings do not strongly support the idea that copyright is a get-out-of-FOIA-free card, because the outcomes are all consistent with the DOJ’s less restrictive standard. 

• Chancellor Myles cites a New Jersey case about a man who requested the “All-22” video of a Rutgers game against Penn State so his 13-year-old daughter could further develop her football strategy knowledge. That court found that the strategies contained in the recording were a trade secret. So far, no one has proposed that Hale’s manifesto is a secret formula to anything worth protecting. 
• Chancellor Myles cites a California case about an attorney who requested instructional materials from 18 different computer science courses. In that case, which was ultimately settled, the request would have failed a fair use analysis. Releasing the materials would have deprived the owners, college professors, of the whole value of their works for a purpose described as “general public interest in access to knowledge.” The balance of equity is dramatically different here.
• Chancellor Myles cites a Florida case about videos of a SeaWorld trainer being killed by an orca. The videos were withheld to protect the privacy of the victim’s family. While the court said that SeaWorld’s copyright provided “a separate and independent basis for restricting disclosure of those videos,” it wasn’t the basis for the holding, and the privacy exemption still applied. In this case, the family’s privacy interest in Hale’s writings is outweighed by the public interest in knowing why Hale killed people, and what opportunities there might have been to prevent that. 

Comparing apples to apples

Football, computer science, and killer whales notwithstanding, it wouldn’t hurt to peek at how the feds handled a copyright claim to evidence from a case more relevant to Hale’s: a high-profile murder in Tennessee.

In Harold Weisberg v. U.S. Department of Justice, decided in 1980, an investigative reporter sought copies of photographs of the Martin Luther King Jr. assassination investigation. Time Magazine owned those photos, but the requester sought them under FOIA — primarily, he said, because Time wanted $10 a copy and the FOIA reproduction fees were lower. In upholding a district court ruling that copyright law should not bar their disclosure, Judge Bazelon of the D.C. Circuit Court of Appeals wrote: 

[T]he requested materials plainly “reflect the . . . operation, or decision-making functions of the agency,” because they will permit evaluation of the FBI’s performance in investigating the King assassination. Further, absent a FOIA request, there is no guarantee that the photos would be disclosed. Indeed, interpreting FOIA as the Government urges would allow an agency “to mask its processes or functions from public scrutiny” simply by asserting a third party's copyright. [Citations omitted and emphasis added.]

While the absurd implications of the Hale ruling are fun to explore, the practical implications are not. A court limited the public’s access to information about a mass murder in the name of the intellectual property rights of a group that openly stated it never intends to publish that information. It is not a radical proposition to say that the public’s right to know should not yield to economic interests here, and it is disappointing that a court of equity — remember, a Chancery court is meant to “modify the application of strict legal rules and adapt relief to the circumstances of individual cases” — did not reach that conclusion on its own. Presumably, a higher court will correct course following an appeal.  

When we get copyright law wrong, we compensate the copyright holders with money. Money won’t fix what the public might lose if we don’t turn these records over.  

To recap the Hale records case: We have a frustrated FOIA request, a threat to imprison a journalist for doing his job, and the use of copyright to stop the public from knowing why someone murdered children and adults. This is not how copyright law is supposed to work. 

There’s a reason why economic interests like copyright must yield to compelling public interests like the need to identify warning signs for school shootings. When we get copyright law wrong, we compensate the copyright holders with money. Money won’t fix what the public might lose if we don’t turn these records over.