Copyright and taped interviews

August 1, 2012

Under the federal Copyright Act, to be copyrightable, a work must possess originality and be fixed in a tangible medium. Ideas cannot be copyrighted, but the particular expression of an idea may be. Because of these requirements, much interview material often has a weaker claim to copyright.

Reporter as copyright owner

Journalists can own a copyright interest in an interview. Still, the nature of a journalist’s copyright interest in interview material is not well-defined.

For example, in 1983 Italian journalist Oriana Fallaci won a lawsuit in the U.S. District Court in New York City against the Washington Post for publishing a translation of a published interview she conducted with the deputy prime minister of Poland, Mieczylaw Rakowski, without Fallaci’s permission. The court accepted that Fallaci was a copyright owner of the interview article, but did not describe the nature of her copyright interest, perhaps because the case was a default judgment. (Fallaci v. New Gazette Literary Corp.).

In some contexts, journalists may have copyrights to published interviews if the work they put into assembling the material creates a “compilation,” which is a specific type of artistic work recognized by the copyright act.

In 1981 law student David Quinto published an article containing interview material about his friends’ summer legal positions. Quinto sued a paper that republished his article for copyright infringement, and he was recognized to own the material from the interviews. The U.S. District Court in Washington, D.C., said that even if Quinto did not own the underlying quotations, his “selection, arrangement, and ordering” of them gave Quinto an ownership interest in the resulting work. The court held the work to be a “compilation.” (Quinto v. Legal Times)

Interviewee as copyright owner

Interviewees may potentially be copyright owners in an interview, and courts have accepted transfers of copyright interest in an interview from an interviewee to an interviewer as valid. For that reason, a journalist is best protected when they can secure a written promise from an interviewee, assigning the interviewee’s copyright interest in the interview material to the reporter. 

In 2000, a prisoner and convicted child molester sued an NBC affiliate for copyright infringement when it broadcast an interview with him, without his permission. The prisoner, Arthur Taggart, argued that the interview was a “performance” to which Taggart owned rights.

However, the U.S. District Court in East St. Louis, Ill., did not accept Taggart’s arguments—it held that, because ownership of a copyright can only belong to the individual who fixes an expressive work in tangible form, Taggart could not claim ownership, among other reasons. (Taggart v. WMAQ Channel 5)

The case is a reminder of the importance of the “fixation” requirement in copyright. For that reason, where a journalist is not responsible for recording an interview, but instead receives a taped interview from a third party, they do not own the copyright in the material when they use it.

For example, in a 2012 case heard by the U.S. District Court in New York City, a conference call between Swatch executives and securities analysts, recorded by Swatch, was obtained from a third party and published by Bloomberg L.P.. Swatch sued Bloomberg, arguing that Bloomberg had infringed its copyright interest in the conversation. The court, though noting that “[t]he comments and questions of the securities analysts are not copyrightable,” assumed that Swatch could own a copyright in their own tape-recorded conversation — but said that Bloomberg’s publication would be authorized under the fair use doctrine. Because of the largely factual nature of the tape-recording, the court described Swatch as possessing only a “thin copyright.” (Swatch Management v. Bloomberg L.P.).

First Amendment and fair use defenses

If an interviewee or other entity sues a journalist for copyright infringement for using material from a taped conversation, a journalist is likely to have a strong argument that they are entitled to use the material, because of First Amendment principles and the “fair use” doctrine.

For example, a 1981 Jerry Falwell lawsuit against Penthouse Magazine for copyright infringement shows that courts may find an interviewee’s claim to copyright ownership offensive to the First Amendment. Falwell sued Penthouse for publishing material from a Falwell interview without his consent. The U.S. District Court in Lynchburg, Va., rejected his common-law copyright claim, and called the argument a “broad-based attack on . . . principles of freedom of speech and press which are essential to a free society.” (Falwell v. Penthouse International Ltd.)

In addition, journalists will often be able to use interview material under the fair use doctrine. In 1986 author Katrina Maxtone-Graham sued a conservative minister who published excerpts from her work Pregnant by Mistake in his own scholarly work. Pregnant by Mistake is a book of interviews with women in unwanted pregnancies.

Although Maxtone-Graham owned the interview copyrights, the minister’s use was held to be protected as a fair use. According to U.S. District Court in New York City, the four fair use factors weighed in the minister’s favor. The court found, in addition to the conservative minister’s use being transformative, his using only minimal content, and his not interfering with the market value of Maxtone-Graham’s out-of-print book, that the interview material itself should be more available for the public’s use than other copyrighted work. The court described the work as “essentially reportorial” and “source material.” which should be available for “liberal, but fair, use.” (Katrina Maxtone-Graham v. James Tunstead Burchtaell).

This case illustrates that fair use, while always a context-sensitive decision, often favors reporters’ rights to use material they tape-record for reporting. Interview material, which contain facts and ideas, is considered more available for fair use than other copyrighted material under the second factor of fair use doctrine, which examines the nature of the copyrighted work.