An interview is a conversation between two or more individuals, where the interviewer asks a series of questions to which the interviewee responds, and both parties make comments. Problems with interview ownership can occur when the person being interviewed believes the interviewer has used their responses to mislead or portray them in a negative light or when the issue of who can exploit the interview arises. Asserting a copyright claim to the interviewee’s speech is one possible avenue of redress (trademark and right of publicity may be others), but there are several hurdles to overcome before a copyright claim can succeed.
These issues are in the news because in January 2023 former President Donald Trump filed a $50 million lawsuit against journalist Bob Woodward, his publisher Simon & Schuster, Inc. and its parent company Paramount Global for the public release of interview recordings in an audiobook titled “The Trump Tapes: Bob Woodward’s Twenty Interviews with President Donald Trump.” As background, Woodward contacted and received Trump’s consent to be recorded for a series of interviews for Woodward’s book “Rage,” released in September 2021. Following the publication of “Rage,” the journalist compiled the interview sound recordings used to write the book and released the recordings as an audiobook. Trump claims that he only granted Woodward a license of limited scope and that Woodward never communicated his intent to publish the interview recordings in the form of an audiobook. The Trump case raises interesting issues as to whether interviews are protected under copyright law, who the author and owner of an interview is and how the federal government exemption under copyright law should be applied.
Are Interviews Protected Under the Copyright Act?
The Copyright Act of 1976 (“Act”) extends protection to original works fixed in a tangible medium of expression. In addition to being capable of copyright protection, the interview must be written or recorded to satisfy the fixed in a tangible medium requirement for speech. The interview also needs to be fixed under the authority of the author, i.e., the interviewee must have consented to the interview. When the interviewer fails to obtain permission from the interviewee to conduct the interview or if the interviewer records the interview without the interviewee’s knowledge, such failure or action can render the interviewer’s right to copyright the contributions of the interviewee suspect.
The Federal Government Exclusion
While a private citizen’s interviews and speeches can be fully protected by U.S. copyright law (e.g. Martin Luther King’s “I Have A Dream” speech), the same cannot be said for speeches or interviews of federal officials. Pursuant to Section 105 of the Act, copyright protection is not afforded to any work of the United States Government (“USG”). And Section 101 of the Act provides that “[a] ‘work of the United States Government’ is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” Thus, if a government official makes statements warranted by official duty or proffers explanations as guides for official action, they are expressly barred from copyright protection. Turning to Woodward’s interviews with President Trump, the President’s words to the reporter should fit within the definition of “work of the United States Government,” and that should be the end of the case.
However, not every work created by a federal government official is barred from copyright protection. For example, if a sitting senator writes a mystery novel, he or she is entitled to copyright in that book. By comparison, if that senator writes an Op-ed article explaining a recent congressional hearing, or the benefits of a bill recently introduced, that should be deemed a work of the USG. Interestingly, while works created by USG contractors and grantees are technically beyond the scope of the federal exclusion, the terms of the contract, grant or applicable regulations may impose constraints or limitations on how the works can be exploited. And of course Section 105 only applies to employees and officers of the federal government and not to those working for state or local governments.
This is not to say that politicians and public figures have no protection or recourse against publication without their consent, since the result can theoretically be changed via contract. For example, interviewees with enough leverage can negotiate for the right to approve any product prior to publication. But in reality if the interviewee files a breach of contract or interference of contract claim regarding an interview that is part of their official work, a court would be loath to protect such claim because it should be void as against public policy.
Who is the Author of an Interview?
Assuming an interview does not fall within the federal government exclusion, who owns the copyright — the interviewer, the interviewee or both? Ideally, this issue is settled by a contract between the parties before the interview takes place (see Best Practices section below). Absent such a contract, the situation is ambiguous. As the Copyright Office recognizes (Chapter 700: 33-35 of the section of its Compendium dealing with Literary Works), the interview consists of two separate works with the interviewer and the interviewee owning the copyright in their respective contributions. The interviewer owns all the elements comprising the fixed product – the questions, the camerawork, the sound recording (typically a work for hire owned by the production company). The interviewee owns his or her responses.
However, most interviews flow in a discernible pattern or format, leading to a reasonable conclusion that the two sides intend the independent contributions to be merged into a singular whole, i.e., a joint work. This would allow either party to exploit the work as desired, but with an obligation to provide a financial accounting to the other. This is where the written or orally recorded (for example if the person is being interviewed over the phone for a newspaper on a deadline) agreement comes into play to secure to the interviewer the singular right to exploit the work subject to such conditions, if any, as the parties may negotiate.
Best Practices for Interviewers and Interviewees
Journalists often do not obtain signed interview releases because they presume that by giving the interview, the subject has consented to be interviewed. However, as noted above, an agreement between the interviewer and interviewee is highly appropriate if the interviewer intends to exploit the joint work. The interviewer should secure clear language that the finished work (which may include edits, reorganization for clarity, video camerawork, etc.) has additional elements to support copyright and that the parties to the interview intend that the final work be a singular one controlled by the interviewer. Sometimes, interviewees with specific leverage may oppose publication unless the final work is specifically approved by him or her. Interviewers are sometimes reluctant to be very explicit because the clearer that one is to ownership and use, the harder it may be to secure appropriate consent.
Not raised by the Trump case but to be noted is the practice of media organizations engaging in interviews involving surreptitious recordings. In such situations the publishing organization will in all likelihood rely on the fair use provisions of copyright law to sustain their right to publish.
Source attribution is another issue that should be addressed at the outset of an interview. There are different ways in which information can be attributed to the interviewer’s message, including: (i) for attribution (everything the interviewee says will have his or her name attached, and the interviewer is free to use the information in any message they produce); (ii) attribution by title only (the interviewee’s identity is protected in the message, with the only identifier being a title like “sources close to the White House” or “high placed official”); (iii) no attribution; or (iv) no publication (“off the record”).
While historically interviews and copyright ownership have been the concern of professional journalists, blog writers, podcasters, and other creatives and researchers need to be aware of these issues as well. Please reach out to Lutzker & Lutzker for guidance on interview copyright information or other intellectual property issues.