® InfoJur.ccj.ufsc.Br
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.
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