Interviews are frequently an important element of a book, and 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 the answer is yes, who owns an interview–the interviewee or interviewer? Courts have sometimes applied federal copyright law and sometimes applied state or common law copyright law when deciding cases that involve the protection and ownership of interviews.
Federal Protection Questions
The Copyright Act of 1976 protects “original works of authorship fixed in any tangible medium of expression.” An interview is copyright protected if it satisfies the “originality” and “fixation” requirements of U.S. copyright. Although the originality requirement is seldom an issue for an interview, the fixation requirement sometimes presents problems. It is satisfied only 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” depends on the method used by the interviewer to record or remember the conversation with the interviewee.
An audio- or videotape recording provides a verbatim account of the interview that satisfies the fixation requirement. If an interviewer uses shorthand that is later transcribed, this usually creates a verbatim account of the interview that satisfies the fixation requirement. On the other hand, if an interviewer merely takes notes during an interview, the fixation requirement would be satisfied only if the note taking is extremely thorough, estseven then the fixation requirement may be satisfied only for those portions of the interview that were preserved verbatim; the interviewer’s paraphrases would not be considered fixed.
Copyright law also requires that a creative work be protected only 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, 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, state or common copyright law might be the only available means to provide protection for an interview (see below).
Mixed Signals on Ownership
Once it has been established that a particular interview qualifies for federal copyright protection, one must then determine who is the copyright owner of that interview. Federal copyright law says it’s the author, but is the author the interviewer–the person who ultimately controls the format of the interview? Or is the author the interviewee–the person whose words and ideas are expressed throughout the interview? Judicial decisions and opinions have been split.
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 might not be the copyright owner of the interviewee’s quotations, at a minimum the interviewer would be the copyright owner of the compilation that includes the interviewee’s quotations and the interviewer’s questions, comments, and paraphrasing.
In these cases the courts’ decisions were based in part on (1) the consent of the interviewee, (2) the re-creation by the interviewer of the conversation with the interviewee, and (3) the 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. This 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. The dual approach lets the interviewer and the interviewee claim copyright ownership to their respective contributions in the interview, providing the interviewer with copyright ownership for the organization of the work and the interviewer’s questions, comments, and paraphrasing of the interviewee’s comments, while providing the interviewee with copyright ownership for his/her verbatim quotations.
The final possibility regarding copyright ownership of an interview is treating the interview as a unitary work that has been created by the interviewee and interviewer as joint authors. Under the joint authorship condition, unless otherwise agreed, the interviewer and the interviewee are treated as joint owners of the copyright in the interview, with both owning 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 has the nonexclusive right to use or license the work without obtaining permission from the other owner as long as an accounting is provided to that other owner.
State and Common Law Copyright Protection
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, decisions in two cases that are frequently referred to–Estate of Hemingway v. Random House (1969) and Falwell v. Penthouse International (1981)–do not expressly recognize 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 showed 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 gain copyright control over his/her statements only 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 exist only 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.
Three Tips That Can Prevent Trouble
- To ensure copyright protection and ownership for an interview, make certain that it satisfies the “fixed” requirement under federal copyright law, since you do not want to rely on state or common law for copyright protection.
- If you are acting as an interviewer, obtain written consent from the interviewee for conducting and publishing the interview. Obtaining consent protects you from infringement claims, except in any instance where your use of the interview goes beyond the scope of the consent that was granted (by, for example, presenting inaccurate quotations or off-the-record statements).
- Finally, 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.
Lloyd L. Rich is an attorney practicing publishing, cyberspace, and intellectual property law. He can be reached at 1163 Vine Street, Denver, CO 80206; 303/388-0291; fax 303/388-0477;
firstname.lastname@example.org. For more information, visit www.publaw.com. Holly Panetta, a third-year student at the University of Denver School of Law, provided the research for this article.