 |
|
|
|
Interviews:
Copyright Protection And Ownership
©
Copyright 2004 Lloyd L. Rich
Introduction
Interviews are frequently
an important element of a book, newspaper or magazine article. Copyright
law permits an author to automatically claim copyright ownership and protection
for an "original" work. Does an interview qualify as a copyrightable
work? If yes, who owns an interview – the interviewee or interviewer?
On a case-by-case basis courts have either applied federal copyright law,
state or common law copyright law when resolving issues involving the
protection and ownership interviews.
Federal
Copyright Protection
The Copyright Act of 1976 protects "original works of authorship
fixed in any tangible medium of expression." An interview will be
copyright protected if it satisfies the originality" and "fixation"
requirements of US copyright. Although the originality requirement is
seldom an issue for an interview the fixation requirement sometimes presents
problems. The fixation requirement will only be satisfied if the interview
is captured in a copy that is "sufficiently permanent" to allow
it to be perceived, reproduced or communicated. Whether an interview is
"fixed" will depend upon the method used by the interviewer
to record or remember the conversation with the interviewee.
An audio or video tape recording provides a verbatim account of the interview
that will satisfy the fixation requirement. If an interviewer uses shorthand
that is later transcribed this usually will create a verbatim account
of the interview that will satisfy the fixation requirement. On the other
hand, if an interviewer merely takes random notes during an interview,
the fixation requirement would only be satisfied if the note taking is
extremely thorough and even then the fixation requirement may only be
satisfied for those portions of the interview that were preserved verbatim;
the interviewer's paraphrasing of the interview would not be considered
fixed.
Copyright law also requires that a creative work will only be protected
when it has been fixed under the "authority" of the author,
which in the case of an interview means that the interviewee actually
consented to the interview. The authority requirement becomes especially
relevant if an interviewer failed to obtain consent from the interviewee
to conduct the interview or if the interviewer concealed a recording device
from the interviewee.
Assuming that an interview is original, fixed and conducted with the consent
of the interviewee, then federal copyright law would provide copyright
protection for an interview. On the other hand, if the originality and
consent requirements were satisfied but the fixation requirement was not,
then state or common copyright law might be the only available means to
provide protection for an interview.
Federal Copyright Law – Who Is The "Copyright Owner" Of
An Interview
Once it has been established that a particular interview qualifies for
federal copyright protection, one must then determine who is the copyright
owner of the interview. Federal copyright law provides that the author
is the copyright owner of a work that satisfies the originality and fixation
requirements. Therefore, is the interviewer, the person who ultimately
controls the format of the interview, the author? Or is the interviewee,
the person whose words and ideas are expressed throughout the interview,
the author? Judicial decisions and opinions have been split in deciding
this copyright ownership issue.
In cases such as Rosemont Enterprises v. Random House (1966),
Quinto v. Legal Times (1981) and Taggert v. WMAQ Channel
5, Chicago (2000), the courts decided that the interviewer was the
copyright owner of an interview. Although the interviewer may not be the
copyright owner of the interviewee's quotations, at a minimum the interviewer
would be the copyright owner of the compilation, which includes the interviewee's
quotations and interviewer's questions, comments and paraphrasing. In
these cases the courts' decisions were in part based upon the (1) consent
of the interviewee, (2) recreation by the interviewer of the conversation
with the interviewee and (3) interviewer's ultimate control over the organization
of the final work. The Taggert court also stated that the interviewee's
responses during the interview were not "expression" that could
be protected by copyright law but instead were only unprotected "ideas";
a fundamental principle of copyright law is that it does not provide copyright
protection for ideas. The above-stated rationale provided sufficient weight
for the position that an interview becomes the "literary expression"
and property of the interviewer.
On other occasions the courts granted the interviewee copyright ownership
for his/her words. This will always be the situation when the parties
have agreed that the interviewee will be the copyright owner. An interviewee
may also be recognized as the copyright owner of an interview if the interviewer
has violated the interviewee's right of publicity, which could occur if
the interviewer uses the interviewee's distinctive manner of speech and
expression for commercial purposes without the interviewee's permission.
Another possibility regarding copyright ownership for an interview is
the "dual approach" whereby the interview is treated as two
distinctly separate works. Some legal commentators, as well as the U.S.
Copyright Office, believe this is the preferred ownership approach since
the interview process is a joint venture between interviewee and interviewer.
Therefore, absent an agreement otherwise, the interviewer and interviewee
may both claim copyright ownership to their respective contributions in
the interview. This dual approach provides the interviewer with copyright
ownership for the organization of the work and the interviewer's questions,
comments and paraphrasing of the interviewee's comments and provides the
interviewee with copyright ownership for his/her verbatim quotations.
The final possibility regarding copyright ownership of an interview is
that the interview is treated as a unitary work that has been created
by the interviewee and interviewer as joint authors. Under the joint authorship
condition, unless otherwise agreed to, the interviewer and the interviewee
are treated as joint owners of the copyright in the interview, whereby
both would own an undivided interest in the entire interview. This means
that the authors can jointly decide how they want to use or license the
work. Furthermore, either the interviewer or the interviewee acting individually
would have the non-exclusive right to use or license the work without
obtaining permission from the other owner as long as an accounting was
provided to the other respective owner for such use or license.
State Common Law Copyright Protection And Ownership
If an interview fails to satisfy the "fixation" requirement
of federal copyright law an interviewee may still be able to have his/her
ownership of the interview protected under state or common law copyright
law. However, in two cases that are frequently referred to - Estate of
Hemingway v. Random House (1969) and Falwell v. Penthouse
International (1981) – neither case expressly recognized a
common law copyright protection for oral statements.
In Hemingway, A. E. Hotchner, the author of the book Papa Hemingway
included quotations from his conversations with his friend and drinking
companion, Ernest Hemingway. Hemingway's Estate claimed that it owned
the copyright in the deceased Hemingway's conversations with Hotchner
and that Hotchner's use of these conversations was an infringement of
Hemingway's copyright. The court dismissed the Estate's claim of copyright
ownership ruling that Hemingway's words and conduct expressed that Hemingway
had intended to permit Hotchner to use their conversations and to publish
excerpts from these conversations in Papa Hemingway. Furthermore, the
court stated that a speaker could only gain copyright control over his
statements if the speaker indicated "that he intended to mark off
the utterance in question from the ordinary stream of speech, that he
meant to adopt it as a unique statement and that he wished to exercise
control over its publication."
The Hemingway case has been criticized because it promoted a
distinction between oral statements and written statements by imposing
stricter requirements for copyright protection of oral statements. Under
the Hemingway ruling copyright protection for a speaker's oral
statements might only exist if the speaker (1) demonstrated that his/her
oral statements showed "unique intellectual product" and (2)
had made some indication that he/she planned to claim copyright in the
oral statements.
Falwell involved an interview that the Reverend Jerry Falwell
consented to give to two freelance journalists. After the journalists
sold the interview to Penthouse Magazine, Falwell brought legal action
by claiming that the interview appeared without his consent. The court
rejected Falwell's claim for common law copyright ownership and dismissed
his case stating that Falwell "willfully and freely participated
in the interview" and "an interview with members of the media
is not a private conversation."
The Hemingway and Falwell cases analyzed factors such
as consent by the interviewee, uniqueness of the oral statements, claims
of copyright ownership by the interviewee and the possibility of additional
litigation but these cases failed to reach definitive conclusions regarding
the common law copyright of oral statements. Therefore, these decisions
may provide little assistance to an interviewee trying to claim protection
and ownership under state or common law copyright law for their oral statements.
Tips On Handling An Interview
- To ensure copyright
protection and ownership for an interview you should make certain that
the interview satisfies the "fixed" requirement under federal
copyright law since you do not want to rely upon state or common law
for copyright protection.
- The interviewer
should obtain written consent from the interviewee for conducting and
publishing the interview. By obtaining consent the interviewer will
be protected from infringement claims, except in any instance where
the interviewer's use of the interview goes beyond the scope of the
consent that was granted; for example, inaccurate quotations or off-the-record
statements.
- Resolve all
issues of copyright ownership of the interview in a written agreement
before engaging in the interview.
This article is not
legal advice. You should consult an attorney if you have legal questions
that relate to your specific publishing issues and projects.
Sign up for our FREE
PubLaw Update Newsletter and receive new articles sent to your email
address as they are published.
Lloyd L. Rich is
an attorney practicing publishing and intellectual property law. He can
be reached at 1163 Vine Street, Denver, CO 80206. Phone: (303) 388-0291;
FAX: (303) 388-0477; E-Mail: rich@publishingattorney.com;
Web Site: http://www.publishingattorney.com.
The research for this article was provided by Holly Panetta a third year
student at the University of Denver School of Law.
Back
to Legal Articles Index
|
