It's hard to imagine in the depths of this frigid New York winter, but last summer the city seemed to be in the grips of a Times Square Problem. Costumed characters -- and the relative newcomers, painted topless women -- were declared a public enemy, begriming the otherwise idyllic tourist mecca of midtown. But the NYPD, tasked with enforcing this mandate, had a problem: with only about one crime reported per day in Times Square, there's not a lot to actually enforce.
So, as Techdirt and others reported at the time, the Department tried to get IP law to step in. Posessed of a legal theory that wouldn't have survived much scrutiny, Commissioner Bill Bratton (or one of his employees) approached Disney and Marvel, asking them to sue the costumed performers for copyright infringement. The companies declined. We know all this because Bratton confirmed it to media outlets last August. In CNN:
The NYPD confirmed to CNNMoney that Commissioner Bill Bratton asked Disney and Marvel to sue for copyright infringement. But according to the NYPD, the companies aren't biting.
And in the Daily News:
The city’s top cop said Thursday they got the cold shoulder from Disney and Marvel when they tried to enlist them in the fight against the costumed characters preying on tourists in Times Square.
The NYPD specifically asked the companies if they wanted to charge the hustlers who wear Mickey Mouse, Spider-Man and other well-known costumes with copyright infringement.
Lest you think, "But how would this all fit with the First Amendment?", later in the same interview Bratton gives a remarkable quote that shows exactly how much respect he holds for freedom of speech:
Bratton also took a shot at Times Square artists like Andy Golub, whose specialty is using naked people as his canvas.
"What he is effectively doing is flaunting the first amendment," he said. "Well, it may be an artistic expression, but it repulses the average person, and this is what we’re dealing with."
Given that stance, the copyright requests of Disney and Marvel seemed like they might be extraordinary. So just after these news reports were published, late last August I made a public records request for the communications -- or records of the communications -- under New York's Freedom of Information Law (FOIL).
I should not have expected much. After all, NYPD was given an "F" grade for its FOIL compliance by then Public Advocate Bill de Blasio in a 2013 survey of New York agencies. At least at that time, nearly a third of FOIL requests to NYPD simply went unanswered. Over a quarter took more than 60 days to process.
And when my request was acknowledged, I was told a review for the records would take 90 business days. Already, that's an outrageously long time for an agency to take. FOIL allows some flexibility in response times, but 90 business days is about four months -- too long for the records to be useful to a follow-up story, and far too long to allow me to refine my request and send in for more information.
Alas, this wasn't a top priority for me, and I accepted the 90-day timeline without appeal. So a little more than three months later, I got the word: "this unit is unable to locate records responsive to your request." In other words, no responsive documents; I get nothing.
What could this mean? As I see it, there are just a few possibilities.
First, maybe I phrased my request in a way that doesn't describe the records they do have. I think I was pretty accurate with my description, but you be the judge:
Communications and/or records of communications from January 1, 2012 to August 28, 2015 between the New York City Police Department and representatives of Disney, Marvel, The Jim Henson Company, Sesame Workshop, Sanrio, Viacom, Nickelodeon, DC Comics, Warner Brothers, Lucasfilm, or Nintendo of America, pertaining to or addressing the use of costumed characters in or around Times Square. Such communications, in the form of encouragement to Disney and Marvel to initiate copyright litigation, have been acknowledged by the NYPD to CNN in an August 28 story titled, "NYPD to Disney and Marvel: Get Minnie Mouse and Spider Man out of Times Square"
Maybe there are no communications at all, despite Bratton and Disney confirming there were to the media. I don't really see what anybody has to gain by doing this.
Maybe the department has responsive records and chose not to give them to me. The agency didn't cite an exemption or provide any indication that this was the case, but we're talking about an agency that made up its own bogus "classification" scheme. It may be in violation of FOIL, but it doesn't seem beyond the pale for the NYPD.
Finally, it's possible NYPD conducted these communications in a way that did not generate any records. This is just speculation, but if this is the case, it's hard to imagine this happening by accident. The NYPD asking Disney and Marvel to bring lawsuits, and there's no paper trail at all?
Unfortunately, the nature of frustrated transparency efforts is that we don't really have the answers. If the NYPD had promptly responded that it had no such records or would be withholding them according to a particular exemption, or even if it had given me a limited set, we could close this case. As it stands, we don't really know anything more about the NYPD's bizarre efforts to jam its "quality-of-life" issues into an ill-fitting copyright enforcement box.