Copyright in Flight Cockpit Recordings

May 3, 1968 was a tragic day in Texas. Braniff International Airways Flight 352 crashed near Dawson, killing all 85 on board the flight, including 5 crew members and 80 passengers.

According to the National Transportation Safety Board (NTSB), the cause of the crash was the pilots flying into a space with known bad weather and then attempting to recover the plane with a maneuver that ultimately stressed the frame to the breaking point.

Braniff Airways, and the various names it operated under, had been in operation since in 1928 and, for much of its life, was a major player in air travel. The company ceased airline operations in 1982, though the company remains in operation and its subsidiaries continue to operate as well. 

However, the accident has been largely forgotten, despite being the second-deadliest airplane crash in Texas history. But as the 55th anniversary of the crash approached, Braniff was planning a special event at the accident site where they would help reveal a new historical marker for the location.

A few days before that ceremony, the Fort Worth Star-Telegram released the transcript and tape of the cockpit voice recorder from the crash, publishing both on their website as a transcript and on their YouTube channel as a video with captions.

However, Braniff took issue with this leak, saying that it was inappropriate and harmful to family and friends of those killed in the crash. They immediately sought to prevent the release, saying in a letter to the paper that it was unauthorized and against Department of Transportation regulations.

But when that didn’t work, Braniff took a different approach, claiming copyright in the flight recording. They first filed a takedown notice against the YouTube version, which prompted a counternotice being filed by the paper. 

When the video was restored, Baniff then turned to the Copyright Claims Board (CCB), filing a claim there.

Though the case has a great deal of issues, it’s still an interesting question: What are the rules regarding copyright. The answers aren’t exceptionally clear and gets extremely complicated quickly.

Background on the Case

Disclosure: I am not a lawyer. Nothing in this is legal advice. Though I am generally well-versed in copyright, I am a complete outsider when it comes to aviation and related issues and, as you’ll see, this case goes into many complicated questions that are outside my expertise on both issues.

According to the claim, at the center of the issue is an individual identified only as Seller. Seller was hired by Braniff in June 1968 to transcribe the flight cockpit recorder with only three copies to be made, one for the Department of Transportation (DOT), another for the Federal Aviation Administration (FAA) and the final one for Braniff.

The claim goes on to state that the DOT returned their copy to Braniff in 1972 and the FAA destroyed theirs in 1974, leaving on two legal copies, both in Braniff’s archives.

However, the claim alleges that the owner of Seller’s recording studio most likely created a fourth copy of the tape and the paper gained access to that unauthorized version, publishing it and the transcript days before the 55th anniversary of the crash.

That said, the claim itself seems to have a myriad issues, even before looking at the copyright questions. First, the filer of the claim, Richard B Cass, is listed both as a claimant and a representative of Braniff. 

Second, the respondent is listed as Collin L Lice, who is not mentioned in the claim and doesn’t appear to be connected with the Star-Telegram. It’s unclear why Lice is considered the infringer from the claim itself.

Finally, the case appears to be over the actual transcript, which was produced by a third party, and not the original recording. This raises two separate issues.

First, the transcript is a derivative work based on the original sound recording. It would only enjoy copyright protection in whatever is new and original to it. Second, any copyright interest in it would, by default, go to the transcriptionist. Though it’s likely that person did agree to transfer those rights, it’s not discussed in the claim if they did or not.

In short, this case will likely need to be amended and clarified before moving forward. However, that raises a simple question: If this case does move forward, what are the rules around copyright and flight cockpit recordings?

Copyright and Flight Cockpit Recorders

It’s a question that sounds insane to even ask, but are flight cockpit recordings protected by copyright?

On the surface, this seems simple. Flight cockpit recordings, fundamentally, are sound recordings. Sound recordings, in general, are protectable by copyright. 

Though such recordings are required under law, with many regulations related to how they are used, what they must capture and how they must be protecetd, there’s no rule (that I was able to find) that limits the copyright protection in such recordings.

As such, a cockpit recorder is a recording device owned by a company that is recording its employees engaging in their job. It would, theoretically, be similar to a tape recording of an office meeting. As such, it would be owned by the company. 

However, there are more than a few wrinkles in that.

First is that much of the information stored in a flight recorder is purely factual. This includes information about the plane’s position, speed and status. Simple facts cannot be protected by copyright. This is true even of the dialog spoken by the those in the cockpit

The second is that, even looking at just the voice recorder side of the issue, much of the spoken dialog comes from air traffic controllers, not Braniff’s staff. Air traffic controllers are hired by the FAA (which has been the case since 1936) and that makes them federal government employees. Works created by the federal government are public domain in the United States.

This raises a series of complicated issues without clear answers. Since the pilot and co-pilot are Braniff employees and speaking with air traffic control is a key part of their job, it seems likely that Braniff at least would own their contributions. 

But could the work be considered a joint work between air traffic control and the pilot? If so, how does that work, given that the federal government can’t hold copyright? 

To that end, I’ve not been able to get a clear answer. Despite several searches and reaching out to other experts in this space, I’ve not found any clear answer. If you know or any relevant case law, please contact me and let me know. 

Then there’s the issue that the work is, technically, a pre-1972 sound recording, which are only partially in the federal copyright system.  Though this isn’t likely a significant issue, thanks to the Music Modernization Act, it still adds another wrinkle to the already convoluted case.

However, quite possibly, the biggest issue with this case is fair use.

Even though the paper made use of nearly all the relevant content from the voice recorded, there’s definitely a news interest in doing so and there’s a very limited (if any) commercial interest in such recordings. 

To that end, the recent Warhol ruling may be a boost for the newspaper as it steers the conversation away from transformativeness, and to are more nuanced weighing of all the factors. The paper’s use of the recording was certainly not transformative, but other factors (and other elements of the first factor) likely favor the paper in its use, this includes the so-called “fifth factor” of likability.

In short, a newspaper covering a major tragedy, even one that’s 55 years old, is going to get a lot of leeway when it comes to copyright. It’s probably safe to say that, if the case does go to any kind of hearing, it’s likely that they would, at the very least, have a very strong fair use argument.

Bottom Line

This case is an interesting one. It looks at a type of work that is rarely, if ever, thought of in the context of copyright. It’s just not something even people who live and breathe copyright have considered.

The reason for that is simple: There’s not much commercial interest in flight cockpit recorders or transcripts thereof. Outside of training, there’s simply not a lot of commercial interest in these works and the only time there is any interest is after accidents, such as the one in 1968.

And that is true in this case as well. Reading the claim, Braniff isn’t really upset about any commercial issue. Instead, they are worried about the harm that the posting did to family and friends of those who died and about their own reputation, as some of those family members believed Braniff released the tape themselves to “generate hype” for the marker ceremony.

Copyright exists to encourage the creation of creative works. It does this by focusing its protection on commercial interests that enable creators to benefit and exploit their work. While we’ve seen copyright used for reasons beyond commercial issues, such as with the fight against non-consensual pornography, using copyright in those situations makes the arguments more difficult. 

In the end, the video only has 550 views as of this writing. While the case raises interesting questions, it’s also easy to see why others have simply said the issues aren’t worth working through. While I agree that Braniff’s goals are noble, I’m unsure if copyright is the correct tool to address these issues, especially given the complexity of the case.

Still, it’s the type of copyright question that people who work in this space try to wrap their brains around. If nothing else because the questions are simply that novel.