WRESTLING OVER REPUBLICATION RIGHTS: WHO OWNS THE COPYRIGHT OF INTERVIEWS?
MARY CATHERINE AMERINE
ABSTRACT
In a society that constantly consumes information—news, celebrity gossip, trends and
fashions—the interview is an invaluable mainstay of the information age. Journalists rely on
interviews with politicians, celebrities, and intellectuals to draw in readers, who are in turn
fascinated by interviews for their insight into the minds and lives of public figures. For such a
ubiquitous and pervasive form of journalistic reporting, the law is astonishingly unclear about
the copyright ownership of interviews.
Courts have come to several contradictory holdings about the copyright ownership of
interviews. Because of this lack of consensus, interviewees are able to chill journalistic speech
by claiming a potentially unfounded copyright interest in their interviews, and interviewers are
susceptible to interviewee demands of payment for republication rights. Until this issue is settled
conclusively, interviewees’ claims of copyright interests in interviews could have serious
ramifications for the business practices of journalists, resulting in costly and complicated
negotiations that lead to higher transaction costs.
This Note sets forth and analyzes the ways that courts have attempted to deal with the
question of interview ownership, and proposes an alternative solution that addresses the
interview as a singular, unified work, with copyright ownership based on the concept of
“authorship” rather than individual statements made by separate parties.
TABLE OF CONTENTS
The author is a Second Year J.D. Candidate at William & Mary Law School, degree expected May 2017.
1
Introduction
I. Court Decisions and Potential Answers to Ownership
A. Are Individual Elements of an Interview Copyrightable?7
B. Theories of Copyright Ownership of Interviews
1. Split Copyright
2. Copyright in the Interview as a Compilation
3. Joint Copyright
II. The Fair Use Defense
III. Contract Law and Transaction Costs
IV. The Role of Journalistic Authorship in Copyright Assgignment
Conclusion
INTRODUCTION
In 1994, Bill Bryson, a popular travel writer, was interviewed by a freelance journalist,
Mike Gerrard.1 The interview, which totaled around 8,000 words, was published in Passport
magazine,2 then seemingly forgotten, left in the magazine archives and banished to the
journalist’s filing cabinet. Over the next twenty years, Bryson rose to great prominence with his
witty and unique commentary on travel, history, science, language, and nearly everything in
1 P.J. Vogt, Bill Bryson Might Legally Own Every Word He Says Out Loud, ON THE MEDIA:
BLOG (Oct. 17, 2013, 1:54 PM), http://www.onthemedia.org/story/bill-bryson-owns-all-words-
he-says-apparently/.
2 Mike Masnick, Author Claims Copyright Over Interview He Gave 20 Years Ago, TECHDIRT
(Oct. 21, 2013, 8:55 AM), https://www.techdirt.com/articles/20131019/03042524937/author-
claims-copyright-over-interview-he-gave-20-years-ago.shtml#c261.
2
between.3 Several weeks after Bryson published One Summer: America, 1924 on October 1,
2013,4 Gerrard dusted off the 1994 interview, polished it up, and turned it into an e-book for sale
on Amazon.com, entitled Bill Bryson: The Accidental Traveler.5 Shortly thereafter, it
disappeared from Amazon’s listings.6 Bryson’s publisher, Transworld Publishers, had claimed
that Bryson owned the interview, or at least, his quotes from the interview.7
While Gerrard made it clear that he was ready to fight Bryson’s claim,8 the entire, very
public, disagreement disappeared entirely. Transworld’s letter on Bryson’s behalf to
Amazon.com was never released to the public. Gerrard was a writer with World Travel Market,
but its coverage of the story has since disappeared from their website, along with any other
mention of Gerrard.9 Perhaps the journalist himself summed it up best: “It’s clearly a case of the
3 BILL BRYSON: BOOKS, HTTP://WWW.BILLBRYSONBOOKS.COM/INDEX.PHP/BOOKS/ (last visited
Mar. 6, 2016).
4 BILL BRYSON, ONE SUMMER: AMERICA, 1927 (2013).
5 Ben Challis, Bryson Claim Puts Free Speech in Focus, THE 1709 BLOG (Oct. 19, 2013),
http://the1709blog.blogspot.com/2013/10/bryson-claim-puts-free-speech-in-focus.html.
6 Mitch Kowalski, Ebook pulled after travel writer Bill Bryson claims he owns words he uttered
in nearly two-decade old interview, FINANCIAL POST (Oct. 17, 2013, 11:39 AM),
http://business.financialpost.com/legal-post/bill-bryson-ebook-mike-gerrard.
7 Id.
8 Masnick, supra note 2.
9 World Travel Market Search Result, WORLD TRAVEL MARKET,
HTTP://WWW.WTMLONDON.COM/ (search “Mike Gerrard”).
3
big boys agreeing with each other, and the little guy doesn’t stand a chance. The legal decision
will go to whoever is rich, not whoever is right.”10
While Transworld Publishers confidently asserted Bryson’s copyright over the
interview,11 the copyright ownership of interviews is a grey area in copyright law. There is no
clear-cut answer,12 and it is difficult for journalists to challenge the claims of their more
prominent, wealthy interviewees, as the altercation between Bryson and Gerrard demonstrates.
The balance of power makes it far more likely that the issue just goes away without ever
reaching the inside of a courtroom. The immediate result is a chilling of journalistic speech, as a
potentially unfounded ownership claim can generate sufficient financial pressure to prevent the
interview’s republication. Furthermore, such claims have the potential to seriously impact both
the value of newspapers’ assets and the transactional relationships between journalists and
interviewees.13 If interviewees begin successfully asserting their shaky ownership rights, the
10 Mike Gerrard, Comment to Author Claims Copyright Over Interview He Gave 20 Years Ago,
TECHDIRT (Oct. 21, 2013, 1:38 PM),
https://www.techdirt.com/articles/20131019/03042524937/author-claims-copyright-over-
interview-he-gave-20-years-ago.shtml#c261.
11 Vogt, supra note 1.
12 See Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014); Quinto v.
Legal Times of Washington, Inc., 506 F. Supp. 554 (D.D.C. 1981); Suid v. Newsweek Mag., 503
F. Supp. 146 (D.D.C. 1980); Taggart v. WMAQ Channel 5 Chi., No. 00-4205-GPM, 2000 WL
1923322 (S.D. Ill. Oct. 30, 2000); Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250
(N.Y. 1968).
13 This Note will assume that the interviews in question are conducted with the interviewee’s
express or implied permission to publish them, and is concerned primarily with the problems that
4
value of newspaper and magazine archives and journalists’ portfolios will decrease, as they will
be unable to republish the interviews that they have conducted without contracting with the
interviewee. This additional contractual requirement and corresponding royalty payments could
be a deterrent to the republication of interviews.14 Because interviewees have greater leverage in
such transactions, they would have control over both the product the journalist is contracting for
—the interview itself—and the ability to restrict the publication of that interview; interviewees
would be able to essentially set their own fee for the interview, forcing journalists to pay, forego
the interview entirely, or give up copyright ownership and republication rights. It is therefore
imperative that courts come to a clear decision about the ownership of copyright interests in
interviews to resolve the current confusion and prevent parties from making unfounded legal
claims that result in the chilling of speech.
This Note will argue that the analysis with which courts have approached the issue of
copyright ownership of interviews is insufficient in light of the language of the Copyright Act of
1976 and the subsequent impact of decisions on transaction costs. As an alternative, this Note
will present a method of determining interview ownership that focuses on the authorship of the
work as a whole, rather than individual statements. Part I discusses court opinions and decisions
about the issue, and the consequences of those decisions. Part II addresses a fair use doctrine
justification for the republication of interviews, regardless of copyright ownership. Part III
considers current journalistic practices and the implications of potential resolutions on the ways
arise beyond the initial contracting, either formally or informally, for first publication rights.
14 This contractual requirement is particularly likely to deter republication of interviews in cases
where the interviewee is difficult to track down or has died in the ensuing period. The latter case
brings up the question of negotiating for publication rights with the decedent’s estate, another
complication in what is currently a somewhat more straightforward process.
5
in which journalists conduct interviews, including contract and transactional issues. Finally, Part
IV proposes an alternative method for analyzing copyright ownership of interviews, based on the
concept of journalistic authorship.
I. COURT DECISIONS AND POTENTIAL ANSWERS TO OWNERSHIP
Although copyright protection is based in statutory law, the Copyright Act provides no
explicit guidance for the treatment of interviews, which are not mentioned in the Act and receive
protection only through their designation as “literary works” or collections of fact.15
Unfortunately, case law is also unclear, as court decisions have reached contradictory answers.16
There are several potential resolutions to the question of copyright ownership of
interviews that are supported by various court opinions, each having different ramifications for
journalistic practices and the business of interviews. The first option is that that the journalist
owns the copyright of the entire interview, but the interviewee’s contribution to the interview is
not independently copyrightable.17 The second is that the interviewer owns the copyright to the
work as a compilation.18 The third is that each party owns the copyright only to his or her own
words. Under this third scheme, the journalist would hold the copyright to the questions asked,
15 17 U.S.C. §§ 102(a)(1), 103(a)(2010). For Interviews that deal primarily with the relation of
facts, the original elements of the interview—the specific questions that are asked, their order,
and the verbatim answers given—would still be protected under the Copyright Act, as a factual
compilation. The requirement of fixation for protection is also met by the journalists’ authorized
recording of the interview in various mediums.
16 See supra note 12 and accompanying text.
17 See Taggart, 2000 WL 1923322.
18 See Quinto, 506 F. Supp.
6
and the interviewee would have copyright over the answers.19 Finally, a similar scheme proposes
that the parties have a joint copyright in the interview as a collaborative work.20
A. Are Individual Elements of an Interview Copyrightable?
In order to examine the potential ownership claims the parties may have over an
interview as a whole, courts have examined the individual contributions made by each party to
determine whether they individually rise to the level of authorship and originality required to
provide the party with a copyright interest. In Taggart v. WMAQ Channel 5 Chicago, the
Southern District of Illinois held that an interviewee does not have a copyright interest in the
interview.21 The court does not seem to suggest that the interview as a whole is uncopyrightable,
but merely that the interviewee does not have an ownership interest.22 By excluding one of the
two parties from ownership, this opinion suggests by process of elimination that the ownership
rights must lie with the journalist.
In April 1999, a producer for WMAQ, a Chicago television station, contacted Arthur
Taggart for an interview.23 Taggart was at the time an inmate at Big Muddy River Correctional
Center, where he was serving his sentence for five counts of aggravated criminal sexual assault
19 See Newsweek, 503 F. Supp.; Compendium II of Copyright Office Practices § 317, (1984).
20 Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT §§ 6.07 (2000).
21 Taggart v. WMAQ Channel 5 Chi., No. 00-4205-GPM, 2000 WL 1923322 at *2 (S.D. Ill. Oct.
30, 2000).
22 Id. at *4.
23 Id. at *1.
7
involving two minor boys.24 Taggart consented to the interview, which was filmed at the prison.25
However, after the completion of the interview, Taggart requested that it “not be used in any
manner.”26 After WMAQ included excerpts from Taggart’s interview in a two-part broadcast
about the dangers of summer camps,27 Taggart sued for copyright infringement, claiming that he
was the sole owner of the rights in the interview.28 The court rejected Taggart’s claim of
copyright infringement on the grounds that his responses to the interview questions did not rise
to the level of a “tangible embodiment of the expression of an idea.”29 The court held that
Taggart’s statements were “simply an idea,” and “not an expression of an idea for the purposes
of copyright law.”30 According to this court, the interviewee does not have a copyright interest in
his own words because they do not reach the standard of authorship required,31 and indeed,
“[p]laintiff’s reading of copyright law to protect his interview comments with WMAQ as a work
of authorship conflicts with ‘the most fundamental axiom of copyright law.’”32 As the interview
was conducted in a question-and-answer format, “although the Defendant interviewer likely
contemplated his questions before asking them of the Plaintiff, Plaintiff’s comments during the
24 Id.
25 Id.
26 Id.
27 As his convictions resulted from his molestation of two children at the camp he ran.
28 Taggart, 2000 WL 1923322 at *1.
29 Id. at *4.
30 Id.
31 Id. at *4-5.
32 Id. at *4.
8
interview were unprepared and spontaneous responses,” which do “not rise to the level of a
literary or intellectual creation that enjoys the protection of the copyright law.”33
The opinion does not specify the standard for authorship applied by Chief District Judge
Murphy in his analysis,34 but his statement suggests that he is requiring some sort of intention
and forethought in order for a statement to be considered a “work of authorship” worthy of
copyright protection. However, the concept of “authorship” requiring an intent to create is not
found anywhere in the Copyright Act itself, and is not a common-law requirement. Indeed, the
decision in the seminal case Alfred Bell & Co, Ltd. v. Catalda Fine Arts, Inc. specifically found
otherwise.35 In Catalda, the plaintiff, Alfred Bell & Company, brought suit against Catalda Fine
Arts, Inc. for the infringement of several mezzotint engravings of other paintings in the public
domain.36 The defendant in response argued that the copyrights in the engravings were invalid, as
the engravings were copies of paintings created by other artists.37 In upholding the plaintiff’s
copyrights in the engravings, the Second Circuit found that the engravings were different enough
from the originals that they could be copyrighted.38 More importantly, the court held that it is not
necessary that the differences between the originals and the copies (that made the copies
copyrightable in the first place) be intentional.39 Indeed, the opinion goes so far as to state that
33 Id. at *5.
34 Although the standards for authorship have been discussed in other cases, infra Part V.
35 Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d. Cir. 1951).
36 Id. at 104.
37 Id.
38 Id. at 105.
39 Id.
9
[e]ven if their substantial departures from the paintings were inadvertent, the copyrights would be valid. A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having hit upon such a variation unintentionally, the ‘author’ may adopt it as his and copyright it.40
If a copyist’s inadvertent movement is sufficient to create a copyright in the resulting brush
strokes, it seems incongruous to suggest that the words of an interviewee are uncopyrightable
merely because they were not planned or composed before the interview. If an unintentional
creation can be copyrighted, as the Second Circuit’s ruling in Catalda suggests, then the
benchmark for intent that the Taggart decision imposes on authorship is unfounded.
In his analysis, Chief District Judge Murphy also seems to be conflating the concept of
“authorship” with “originality” when he addresses the lack of unique expression in the plaintiff’s
statements; he judges the copyrightability of Taggart’s comments based upon their spontaneous,
and therefore possibly ineloquent,41 nature.42 A judgment of copyrightability of a work based
upon its literary value, or lack thereof, is something that courts have long been careful to avoid.43
Because copyright protection covers a broad range of works without consideration for their
quality, the Supreme Court has refrained from establishing an originality test that would require
40 Id.
41 Another factor that may have played a role in the court’s decision is the identity of the
plaintiff. The judge’s determination that Taggart’s statements lacked authorship may have been
as much a reflection on his status, and a desire for the court to avoid assigning copyright interest
to such a character as it was about the analysis of copyright law in relation to interviews.
42 Taggart v. WMAQ Channel 5 Chi., No. 00-4205-GPM, 2000 WL 1923322 at *5 (S.D. Ill. Oct.
30, 2000).
43 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52(1903).
10
judges to insert their aesthetic judgment about originality into decisions.44 Instead, a very low
bar for originality has been applied, intentionally set low enough to prevent courts from refusing
copyright protection to works on the basis of their quality.45 As the bar for originality is so low,
heightening the authorship requirement of the Copyright Act by requiring intent to establish
copyrightability is inappropriate and incongruous with the low originality requirement.
Furthermore, while the court unequivocally found against the interviewee in Taggart,46
this ruling leaves unanswered the fundamental question of copyright ownership; the court
declared that Taggart does not own the interview, but did not provide any affirmative ownership
rights.47 Simply finding the interviewee’s statements uncopyrightable does not mean that the
interview as a whole cannot be copyrighted, nor does the opinion seem to suggest this.48
The idea that intent may be a requirement for establishing authorship has also been
discussed in several other cases. Hemingway’s Estate v. Random House, Inc.49 deals with issues
44 Id.
45 Id. As Justice Holmes wrote in the Bleistein opinion,
It would be a dangerous undertaking for persons trained only in the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation … At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.
Bleistein, 188 U.S. at 251.
46 Taggart, 2000 WL 1923322 at *5.
47 Id.
48 Id.
49 Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250 (N.Y. 1968).
11
involving common-law copyright in oral statements,50 However, elements of the court’s decision
are still relevant to this discussion. In this case, Ernest Hemingway’s estate objected to the
publication of a book about Hemingway, in which the defendant, the book’s author, quoted
statements that Hemingway had made to him in private, recorded conversations. The court held
that permission for the author to use the quotations could be implied from prior performance,51 as
Hemingway himself had previously allowed the defendant to publish articles quoting their
conversations.52
While the court ruled against the protection of Hemingway’s comments, Chief Judge
Fuld did express reservations about completely prohibiting the copyright of all oral statements.53
In a comment that proved prescient, as copyright law has now expanded to include fixation
through recording, the opinion stated that “speech is now easily captured by electronic devices
and, consequently, we should be wary about excluding all possibility of protecting a speaker’s
right to decide when his words, uttered in private dialogue, may or may not be published at
large.”54 He went on to suggest guidelines for copyrighting oral statements:
Assuming, without deciding, that … a common-law copyright in … spoken dialogue might be recognized, it would, at the very least, be required that the speaker indicate 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.55
50 Id. at 253. These issues have since been superseded by the fixation requirement of the
Copyright Act. Copyright Act of 1976, 17 U.S.C. § 102(a) (2010).
51 Estate of Hemingway, 244 N.E.2d at 255-56
52 Id.
53 Id. at 255.
54 Id.
55 Id. at 256
12
According to the analysis, the requirement that something is a "unique statement” is met through
the “creation of the manuscript itself.”56 Although modern interviews are often automatically
fixed through one mechanism or another, the determinative factor to Chief Judge Fuld appears to
be the intention to create a unique expression, while the fixation of an interview includes all
comments made with and without deliberation. This seems to make the interview, although
fixed, more similar in nature to the oral statement for which an additional signifier is required to
create copyright. If the requirement of separate designation to assure copyright protection for
spontaneous oral statements applies to interviews despite their fixed nature, the Hemingway
decision seems to prevent interviewees from copyrighting the statements made in interviews
unless they specifically set those statements apart as unique and copyrighted expressions.
However, several more recent opinions, all addressing the same problem, present a
contradictory view. On February 8, 2011, Swatch Group hosted a conference call between senior
executives of the company and invited securities analysts.57 The call was recorded by the Swatch
Group, which informed participants of the recording, and informed them that the call “should not
be otherwise recorded for publication or broadcast.”58 Bloomberg, although not invited to
participate in the call, obtained a copy of the recording and made it available online to its
subscribers,59 giving rise to the Swatch’s copyright infringement claim.60
56 Id.
57 Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 808 F.Supp.2d 634, 635 (S.D.N.Y. 2011).
58 Id. at 636.
59 Id.
60 Id.
13
The ensuing litigation, The Swatch Group Management Services Ltd. v. Bloomberg L.P.,
resulted in summary judgment in favor of the defendants based on a valid fair use defense in
spite of the plaintiff’s valid copyright, a decision that was upheld on appeal to the Second
Circuit.61 During the contested conference call, Swatch Group senior executives “took questions
from the invited securities analysts.”62 Under the standards set forth in Taggart and Hemingway,
such off-the-cuff spontaneous remarks and answers to questions, because of their unplanned
nature, would not rise to the level of authorship required for the statements to constitute a
copyrightable work.63 The mere fact that Swatch Group recorded the conference call does not,
according to the reasoning of those courts, transform a spontaneous conversation between
business associates into a copyrightable work of authorship.64 However, although the court could
have granted the defendant’s motion to dismiss on the grounds of an invalid copyright, it
specifically chose not to do so.65 The court instead found that the plaintiff had a valid copyright
interest in the recording, as it met the originality requirement of the Copyright Act. The opinion
states that
Bloomberg does not challenge the independent creation of Swatch Group’s audio recording of its senior executives’ extemporaneous commentary on the company’s health and future prospects. And Swatch Group’s audio recording easily satisfies the relatively low bar for creativity, as “even a slight amount will
61 Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 861 F.Supp.2d 366 (S.D.N.Y. 2012) aff’d,
756 F.3d 73 (2d Cir. 2014).
62 Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 808 F.Supp.2d 634, 636 (S.D.N.Y. 2011).
63 Taggart v. WMAQ Channel 5 Chicago, No. 00-4205-GPM, 2000 WL 1923322 at *5 (S.D. Ill.
Oct. 30, 2000); Estate of Hemingway v. Random House, Inc., 244 N.E.2d 256 (N.Y. 1968).
64 Taggart, 2000 WL 1923322 at *5; Estate of Hemingway at 256.
65 Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 78 (2d Cir. 2014).
14
suffice.” Indeed, “[t]he vast majority of works make the grade quite easily, as they possess some creative spark.”66
This decision, regarding remarks that the court acknowledges to be “extemporaneous,” does not
apply Taggart’s elevated “intent to create” or authorship requirement that the Southern District
of Illinois read into the Copyright Act. Instead, the court properly applied the Copyright Act’s
low originality bar to find that such comments, although unplanned, were sufficient to create a
valid copyright interest.67
The conflicting opinions of Taggart and Hemmingway, and Swatch, illustrate the
difficulties that courts have faced in applying copyright law to interviews. While Taggart and
Hemingway seem to apply a heightened “originality” standard,68 this further requirement is
rejected by Swatch, which applies the low originality bar established by precedent to hold
extemporaneous statements copyrightable. Furthermore, the importance of Taggart and
Hemingway should not be overstated. While they refused to grant a copyright interest in the
interviewee’s individual statements, both courts were silent on whether there was a copyright in
the interview as a whole; neither addressed how the entire interview can be copyrighted, or who
holds that copyright.
66 Id.
67 This determination was later affirmed in continued litigation, as Judge Hellerstein granted the
defendant’s summary judgment on the grounds that, although he assumed the copyright’s
validity, the defendant’s fair use defense prevailed. This decision was later upheld by the Second
Circuit, which did not address the issue of copyright validity, but affirmed the validity of the
defendant’s fair use defense.
68 That they couch as a question of “authorship,” but that seems to more closely align with the
“originality” requirement described by other courts.
15
B. Theories of Copyright Ownership of Interviews
While district courts are conflicted regarding the copyrightability of individual statements
made during interviews, there are several rulings that deal with the overall ownership of the
interview.
1. Split Copyright
In Suid v. Newsweek Magazine, the court held that the ownership of an interview is split
between the two parties.69 The plaintiff, Lawrence H. Suid, published a book in June 1978
entitled “Guts & Glory – Great American War Movies.”70 In July 1979, Newsweek Magazine
published an article about John Wayne that used passages appearing in Suid’s book, including
quotes taken from interviews that he had conducted with film director William Wellman.71
The court rejected the plaintiff’s claim of copyright infringement, stating that “[t]he
author of a factual work may not, without an assignment of copyright, claim copyright in
statements made by others and reported in the work because the author may not claim originality
as to those statements.”72 Furthermore, while Suid had obtained a release from Wellman for his
publication of the interview,73 the court determined that it did not serve as an assignment of
copyright. Although the plaintiff had conducted the interview, he could not claim a copyright
interest in it because the relevant quotation had been spoken by the interviewee.74 By refusing to
give an interviewer a copyright ownership in the interviewee’s statements without receiving an 69 Suid v. Newsweek Mag., 503 F. Supp. 146, 147 (D.D.C. 1980).
70 Id.
71 Id.
72 Id. at 148.
73 Id.
74 Id.
16
explicit assignment of copyright from the interviewee, the court indirectly stated that the
interviewee must possess that copyright ownership, in order to be able to assign it to the plaintiff.
This ruling directly contradicts Taggart and Hemingway, which both refused to grant the
interviewee copyright ownership over his statements.75 The interviewee could not have a
copyright interest in his words, as Newsweek held,76 when those words are uncopyrightable
according to Taggart.77 According to the Newsweek decision, the interviewer is prohibited from
receiving a copyright interest in the quotes uttered by the interviewee because the interviewer
cannot claim originality of those statements; they are original to the interviewee, and therefore
the interviewer does not have authorship.78 However, the interviewer does have authorship of the
statements made by himself in the course of the interview. Assuming that the statements made by
both parties are in general copyrightable,79 the interviewer should be able to claim copyright
interest in the statements he or she made in the course of the interview. Therefore, this decision
provides each party with ownership of only the statements they each made within the context of
the interview, resulting in a split copyright ownership of the interview. For each interview given,
there would be two copyrights, each conveying a copyright in the words spoken by each
individual party. Under this scheme, the interview would be divided up; the interviewer would be
able to republish the questions asked during the interview, but not the answers,80 while the 75 Taggart v. WMAQ Channel 5 Chi., No. 00-4205-GPM, 2000 WL 1923322 (S.D. Ill. Oct. 30,
2000); Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250 (N.Y. 1968).
76 Newsweek, 503 F. Supp. at 148.
77 Taggart, 2000 WL 1923322 at *4-5.
78 Newsweek, 503 F. Supp. at 148.
79 Id.
80 Without securing a release.
17
interviewee would have ownership of the answers. The consequences of this division of the
interview’s copyright will be discussed further in Part IV.
The Newsweek decision is reflected in the guidance provided by the United States
Copyright Office. While not legally determinative, their policy on dealing with interviews
currently provides for the registration of copyrights. The 1984 Compendium II of Copyright
Office Practices included only a brief paragraph dealing with interviews, stating that both the
interviewer and interviewee can own material in the interview: “Each has the right to claim
copyright in his or her expression in the absence of a valid agreement to the contrary.”81 Under
this scheme, each party would own only the words that he or she spoke or wrote, dividing the
interview into two separately copyrighted works. The Copyright Office guidelines also state that:
where an application for [an interview] names only the interviewee or the interviewer as author as claimant, and where the nature of authorship is described as an “entire text,” it is unclear whether the claim actually extends to the entire work, or only to the text by the interviewee or the interviewer.82
The Copyright Office’s position has since been clarified in a third edition of the Compendium
that was released and became effective on December 22, 2014. This version provides more
detailed guidelines and slightly changed the Copyright Office’s policy on interviews. First, the
revised compendium requires that the interview contains a sufficient amount of creative
expression in the form of questions and responses.83 The ownership of the copyright is also more
clearly defined, giving each party copyright “in their respective quotations and responses” unless
81 Compendium II of Copyright Office Practices § 317, 1984.
82 Id.
83 Id.
18
they specifically claim it as a joint work, the other party transferred rights to the claimant, or the
interview was created as a work made for hire.84
However, splitting an interview into two separately copyrightable parts does not comply
with the incentive-based theory of the purpose of copyright law. The Copyright Clause of the
Constitution establishes the purpose of copyright law as the promotion of “Science and useful
Arts,” through what has been widely understood as economic incentivization.85 As Richard
Posner writes, copyright protection “trades off the costs of limiting access to a work against the
benefits of providing incentives to create the work in the first place.”86 This incentive model
rewards those who create and disseminate works.87 By splitting the copyright interest in an
interview into two parts, neither of which alone is commercially valuable as a stand-alone work,
the interviewer’s work is essentially stripped of value, forcing potentially costly negotiations
with the interviewee in order for the journalist to utilize the interview, which cuts against the
central goal of copyright law.
2. Copyright in the Interview as a Compilation
Another alternative to the split copyright theory was established by Quinto v. Legal Times
of Washington, Inc.,88 in which the court analyzed the question of copyright ownership under the
“compilation” doctrine of copyright law.89 Section 101 of the Copyright Act defines a 84 Id.
85 William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEG.
STUD. 325 (1989).
86 Id.
87 Joseph P. Liu, Copyright and Time: A Proposal, 101 MICH. L. REV. 409, 428 (2002).
88 Quinto v. Legal Times of Washington, Inc., 506 F. Supp. 554 (D.D.C. 1981).
89 Id. at 559.
19
“compilation” as “a work formed by the collective assembling of preexisting materials or of data
that are selected, coordinated, or arranged in such a way that the resulting work as a whole
constitutes an original work of authorship.”90 Compilation authors do not receive any exclusive
right to use the “preexisting material,” because it is not entirely original,91 but they do receive
protection of the particular order, selection, or arrangement of the material, as long as such
selection or arrangement meets a minimal standard of originality.92
In Quinto, the defendant republished an article written by the plaintiff which included
extensive quotations from interviews that the plaintiff had conducted.93 The defendant asserted
that the plaintiff did not have ownership of the quotations used in the article, and therefore was
unable to bring suit.94 In this case, the court found that the ownership of the individual quotations
was irrelevant to the issue of copyright over the article as a whole, and therefore did not decide
the issue.95 The court did, however, determine ownership of the article in which the quotations
appeared:96 “[r]egardless of who owns the copyright in each of the quoted passages in the article,
there can be no doubt that Quinto owns the copyright in his compilation. . . .”97
While this decision addresses the article as a whole, granting it protection as a
compilation, the fundamental question of interview ownership is left unaddressed. Even if the
90 Copyright Act of 1976, 17 U.S.C. § 101 (2010).
91 17 U.S.C. § 103(b) (2010).
92 Feist Publ’ns, Inc. v. Rural Tel. Serv., 499 U.S. 340, 345-46, 349-50 (1991).
93 Quinto, 506 F. Supp. at 557.
94 Id. at 559.
95 Id.
96 Id.
97 Id.
20
interviewer is given copyright over an article in which quotes from an interview are arranged and
included, this copyright would extend only to that specific ordering; the lack of copyright over
the interview itself would allow others to quote from the interview at will, without the need to
exert a fair use claim.
There are other problems with the Quinto decision. While the “compilation” doctrine of
copyright protection is likely the most appropriate part of the Copyright Act to apply to
interviews, the definition is not strictly applicable. The definition of “compilation” addresses
material that is “preexisting.”98 However, the quotations generated by an interview are not
preexisting, but rather contemporaneously created. Answers to interview questions are therefore
distinguishable from traditional compilations of pre-existing facts, such as those described in
Feist, the definitive Supreme Court case dealing with the copyright of factual compilations.99
Such facts are not themselves copyrightable because they “do not owe their origins to an act of
authorship,”100 while statements made by interviewees are not preexisting materials collected by
the interviewer, but rather responses elicited by specific questions asked.
The Quinto decision is in some ways an effective one. By treating the entire interview as
a compilation of independently copyrightable quotations that belongs to the person who complies
98 Copyright Act of 1976, 17 U.S.C. §101 (2010).
99 Miriam Bitton, Trends in Protection for Informational Works Under Copyright Law During
the 19th and 20th Centuries, 13 MICH. TELECOMM. & TECH. L. REV. 115, 117 (2006). Feist
Publications Inc. v. Rural Telephone Company established that facts are not copyrightable on
their own but compilations of facts can be copyrighted in respect to the originality of their
selection and arrangement. Feist Publ’ns, Inc. v. Rural Tel. Serv., 499 U.S. 340,344-45 (1991).
The facts themselves remain free for public use. Id.
100 Feist Publ’ns, Inc. v. Rural Tel. Serv., 499 U.S. 340, 347 (1991).
21
and arranges them into a single work, Quinto reconciles the uncopyrightability of individual
statements101 with the copyrightability of the interview as a whole. However, this interpretation
does not strictly fit the definition of “compilation” under the Copyright Act.102 Pigeonholing
interviews into the “compilation” doctrine, while an effective solution, is not within the intention
of the Act.
3. Joint Copyright
Another potential solution is to assume a joint copyright.103 In order for a joint copyright
to exist, multiple authors must have created the work “with the intention that their contributions
be merged into inseparable or interdependent parts of a unitary whole.”104 The analysis requires
the court to examine the intentions of both authors at the time that they were working together,105
never a simple prospect. Furthermore, there are several additional problems that arise when
attempting to apply joint authorship to interviews. Because the definition of a “joint work” under
the Copyright Act is exceedingly broad,106 various courts have provided additional requirements
or tests to narrow its scope, often resulting in conflicting doctrines. The Seventh Circuit, in
Gaiman v. McFarlane, adopted a “de minimis” standard for joint authorship, under which a joint
101 According to the Taggart and Hemingway decisions, but not the Swatch holding.
102 Copyright Act of 1976, 17 U.S.C. § 101 (2010).
103 WILLIAM PATRY, PATRY ON COPYRIGHT (2006).
104 Copyright Act of 1976, 17 U.S.C. § 101 (2010).
105 Id.
106 Id. A joint work is defined only as a “work prepared by two or more authors with the
intention that their contributions be merged into inseparable or interdependent parts of a unitary
whole.” Id.
22
author’s contribution must be more than “de minimis,” but must not necessarily be independently
copyrightable.107 Thus, authors that contribute abstract ideas or information may be considered
joint authors.108 However, the Second and Ninth Circuits have historically required that the
contribution of each joint author be “independently copyrightable.”109 Thus we return to the
unresolved question of whether the statements of both parties are independently copyrightable.110
If statements made by the interviewee (and, by extension, the interviewer) are not independently
copyrightable, as the Taggart and Hemingway courts proposed,111 then neither the interviewer
nor the interviewee would be eligible for joint authorship in the Second or Ninth Circuit,112
leaving the problem of copyright ownership of interviews still in conflict.
III. THE FAIR USE DEFENSE
If courts ultimately come to a consensus about the ownership of interviews, fair use
claims would be impacted, as either party to the interview could potentially raise a fair use 107 Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004). See also NIMMER & NIMMER, supra
note 28, at §6.07.
108 Mary LaFrance, Authorship, Dominance, and the Captive Collaborator: Preserving the
Rights of Joint Authors. 50 EMORY L.J. 193, 196 (2001). In the Gaiman case, the Seventh Circuit
granted Neil Gaiman joint authorship over a comic book character that he came up with, but did
not draw or write stories for.
109 E. Scott Johnson, Avoiding Joint Pain: Treatment of Joint Works of Authorship Conditions.
43-JUN MD. B.J. 12 (2010).
110 See supra Subsection A.
111 Taggart v. WMAQ Channel 5 Chi., No. 00-4205-GPM, 2000 WL 1923322 (S.D. Ill. Oct. 30,
2000); Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250 (N.Y. 1968).
112 LaFrance, supra note 128, at 196.
23
defense to circumvent copyright ownership. The long-established test for determining the
validity of a fair use defense considers (1) the purpose and character of the use, including its
commercial or non-commercial nature and the transformative impact upon the work; (2) the
character of the original work; (3) the amount and substantiality of the original work used; (4)
and the impact on the market of the original.113
If the ownership question was resolved conclusively, then the republication of the
interview, without permission, by one of the two original parties would constitute infringement,
and fair use could be brought as a defense by that party. While the interviewee’s consent to the
use of the interview in a publication could be a contractual bar to infringement suits in the case
of first publication,114 there are other situations where fair use could arise. For example, in the
aforementioned example of Bill Bryson’s infringement claim against journalist Mike Gerrard,
the dispute concerned Gerrard’s republication of the interview that he conducted with Bryson.115
Assuming that Bryson owned the copyright, Gerrard could attempt to invoke a fair use
defense.116 The republication of the interview in its entirety would almost certainly weigh against
Gerrard. The Supreme Court, in Sony Corp. of America v. Universal City Studios, Inc., held that
113 Copyright Act of 1976, 17 U.S.C. § 107 (2010).
114 See infra Part III.
115 Masnick, supra note 2.
116 For clarity of the hypothetical I am consistently assuming that Bryson owns the copyright to
illustrate the fair use defense and analysis that would go into similar cases. The legal arguments
and prongs of analysis would operate in the same manner if the roles were flipped so that
Gerrard owned the interview and Bryson was accused of infringement.
24
the reproduction of an entire work has an “ordinary effect of militating against a finding of fair
use.”117
There is no bright-line rule for the amount of a work that can be taken under fair use protection,
but instead depends on the “persuasiveness of a … justification for the particular copying
done.”118 The Supreme Court has held that fair use protects only as much of the work as is
necessary to accomplish the purpose of the infringing work,119 and while republishing the entire
interview may be necessary for Gerrard’s purpose, that purpose—commercial gain from the
interview he conducted—is “presumptively an unfair exploitation of the monopoly privilege that
belongs to the owner of the copyright.”120 While the unfairness presumption that is attached to
the commercial use of copyrighted material may be outweighed by the other fair use factors, the
Supreme Court in Sony conclusively established that the publication of an entire copyrighted
work for the purpose of profiting from that publication is not protected by fair use.121 Gerrard’s
intention of profiting from his republication of the interview is also relevant to the analysis of the
“market impact” factor; by profiting from the republication of the interview, Gerrard would
prevent the other party from doing so, as and an initial republication will preclude a second
profitable publication of the same interview by another party.
The fair use defense, then, while potentially effective in protecting the use of individual
quotations and small excerpts from interviews and articles, does not allow either interviewer or
interviewee to republish an interview in its entirety when the other party is found to own the
117 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 450 (1984).
118 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
119 Id.
120 Sony, 464 U.S. at 451.
121 Id.
25
copyright. The determination of copyright ownership serves to deny one of the parties the rights
to their words, and to the work that they put into either conducting or giving the interview.122 One
party’s copyright ownership effectively precludes the other from profiting.
122 While the court in Feist expressly found that copyright law does not protect the work or effort
invested in a work of authorship, the loss of value is still a morally, though not legally,
compelling factor.
26
IV. CONTRACT LAW AND TRANSACTION COSTS
The assignation of copyright to the interviewer or interviewee has important implications
for the business relationship between the two parties, and the potential transaction costs that
could arise in the course of such relationships. Most interviews are conducted without either
party considering the ownership of the rights to the interview. While individual newspapers may
have different policies, the signing of releases or waivers is generally not included in “best
practices” guidelines for conducting interviews;123 the interviewee’s initial agreement to the
interview seems to be largely considered sufficient for the initial purposes of the journalist.124
However, for potential disputes between interviewer and interviewee after the initial publication,
such an agreement would not serve as a transfer of copyright,125 should a court find one
necessary, or as a license to publish the interview in the future.126
In this area, the field of journalism differs widely from the best practices used by
documentary filmmakers. While the work of journalists and documentarians in some ways
involves a great deal of overlap, the amount of legal preparation and forethought that goes into
interviews differs. In order for a documentary to be distributed and released, broadcasting and
distribution companies require that the filmmakers are covered by extensive Errors & Omissions
123 Ann Friedman, The Art of the Interview, COLUMBIA JOURNALISM REVIEW (MAY 30, 2013),
http://www.cjr.org/realtalk/the_art_of_the_interview.php.
124 Rich Stim, Interview and Property Releases, STAN. COPYRIGHT & FAIR USE CENTER,
http://fairuse.stanford.edu/overview/releases/interview-and-property/
#interview_release_agreement (last visited Mar. 6, 2016).
125 Suid v. Newsweek Mag., 503 F. Supp. 146, 148 (D.D.C. 1980).
126 Id.
27
Insurance (E&O Insurance).127 While documentary filmmaking is not the only field for which
such insurance exists, by the nature of their industry documentary filmmakers are effectively
forced to have E&O insurance, as most documentaries without E&O Insurance are never
released.128
E&O Insurance serves to insulate filmmakers from the types of copyright issues relating
to interviews as addressed in this Note. In order for any individual to appear on camera in a
documentary, they must first sign a waiver or otherwise agree to their appearance in the
documentary.129 While the comprehensiveness of this personal release and waiver vary by
filmmaker, personal waivers and release forms are intended to protect against any privacy or
defamation claims by interviewees.130 At a minimum, the interviewee must grant permission for
the interview to be used in the final documentary,131 and usually to allow the filmmaker to cut
and edit the interview.132 The more formal and comprehensive personal waivers and releases
generally involve a grant of rights in the interview to the filmmaker, worldwide and in
127 Winnie Wong, Errors & Omissions & Rights, Oh My! A Guide to Protecting Your Film,
INT’L DOCUMENTARY ASS’N: DOCUMENTARY MAG. (Spring 2012),
http://www.documentary.org/magazine/errors-omissions-rights-oh-my-guide-protecting-your-
film.
128 Id.
129 Wong, supra note 127.
130 Id.
131 Id.
132 Id.
28
perpetuity.133 This grant of rights insulates filmmakers from any copyright claims that could be
brought by the interviewees.134
One of the main concerns of filmmakers is achieving “clearance” of all rights of
copyrighted or trademarked material appearing in the film.135 However, this conscientiousness
towards copyright issues is a double-edged sword; the cost of ensuring such exhaustive and
detailed clearance for all potential copyright issues is often a prohibitive roadblock for
filmmakers. A 2004 report by the Center for Media and Social Impact documented the rising
licensing costs and problems filmmakers faced with clearing rights.136 While the report does not
include the transaction costs associated with waivers and personal releases, it is illustrative of the
lack of market responsiveness to some copyright issues.137 Although economic theories of
copyright law hold that the market will shape transactions governed by copyright law and
copyrighted material, this is not necessarily true, as demonstrated by the rising licensing costs
and the inability of independent documentarians to keep up with those costs.138 If the ownership
133 Steve Behrens, Doc-makers get specific about copyright fair use, CURRENT (NOV. 21, 2005),
HTTP://CURRENT.ORG/2005/11/DOC-MAKERS-GET-SPECIFIC-COPYRIGHT-FAIR-USE/.
134 Wong, supra note 127.
135 Pat Aufderheide & Peter Jaszi, “Untold Stories: Creative Consequences of the Rights
Clearance Culture for Documentary Filmmakers,” CTR FOR MEDIA & SOC. IMPACT (Nov. 2004),
http://www.cmsimpact.org/fair-use/best-practices/documentary/untold-stories-creative-
consequences-rights-clearance-culture.
136 Aufderheide & Jaszi, supra note 135.
137 Id.
138 Id.
29
of interview rights is to be governed by the market, the world of print media may face similar
issues. An industry standard requiring personal waivers and grants of rights for documentary
interviews does not currently exist in traditional print journalism. While the addition of a
standard license, waiver, or grant of rights to journalistic interview preparation might not seem
like much, the additional costs that high-profile interviewees might impose prior to signing could
have a prohibitive impact upon the market.139
While celebrity speaking appearances are highly compensated, interviews are generally
unpaid;140 the interviewee instead benefits from the publicity and attention gained from the
interview. It is the celebrity interview that would be primarily impacted by an interviewee’s
ownership rights in the interview, as it is the interviewee’s celebrity status that makes the
interview valuable. A celebrity would be able to use that ownership right to demand
compensation for a transfer of copyright interest, while less famous interviewees would likely
not hold enough sway to demand compensation. For celebrities, however, many of whom already
have a platform to publish their own interviews and could therefore theoretically profit from a
copyright interest in the interview, the value of the interview may be worth paying for.
A sample case that illustrates the potential market impact of transaction and contracting
costs of interview rights occurred in 2012, at the Cannes Film Festival. The usual practice for
interviews at film festivals entails a “press junket” paid for by studios, which includes the cost of
139 Id.
140 While exceptions to this rule do exist, paid interviews are not the norm, and “open[] up a
whole range of ethical dilemmas.” Liam Lacey, Is an Interview with Brad Pitt worth $3,200?,
THE GLOBE & MAIL, http://www.theglobeandmail.com/arts/film/is-an-interview-with-brad-pitt-
worth-3200/article4105824/ (last visited Mar. 6, 2016).
30
journalists’ travel and expenses, with the catch that the studios establish interview conditions.141
Regional movie distributors are often asked to buy time for journalists, but the costs are borne
only by the studios and distributors.142 However, at the 2012 Cannes Film Festival, Canadian
distributors of two movies, Killing them Softly and On the Road, chose not to participate in the
press junkets for Canadian journalists.143 Instead, the journalists were provided with a list of
prices for interviews with Brad Pitt and Kristen Stewart, the stars of the two movies in
question.144 The backlash was almost universally negative.145 While Alliance Films, the
distributor that issued the pricing list, defended its decision as an expense-sharing method,146 the
reaction of journalists and other press outlets was almost universal outrage. Toronto’s Globe and
Mail described the fee as “anathema to respectable publications and broadcast outlets,”147 and
Brian D. Johnson, the president of the Toronto Film Critics’ Association, described the
“chequebook journalism” as “downright weird” and going too far.148
141 Eric D. Snider, I Was a Junket Whore, SNIDE REMARKS (July 24, 2006),
http://www.ericdsnider.com/snide/i-was-a-junket-whore/.
142 Id.
143 Lacey, supra note 140.
144 Id.
145 Id.
146 Sonia Elks, Journalists Charged €2,000 to interview Brad Pitt at Cannes, METRO (May 22,
2012, 9:16 PM), http://metro.co.uk/2012/05/22/journalists-charged-2000-to-interview-brad-pitt-
at-cannes-435419/.
147 Lacey, supra note 140.
148 Id.
31
Of course, given the close relationship actors have with the media and their dependency
on publicity, not all actors would be willing to charge for interviews, or to require consideration
for granting copyright in interviews.149 Indeed, it is not clear that the actors involved in the
Cannes fee scheme were initially aware of it at all, as publicity arrangements are handled by
distributors and studios. At the Venice Film Festival in 2009, Michael Moore was informed in an
interview that Norwegian journalist, Nils Gjerstad, had been charged $3,000 for an interview.150
He replied that “If I find out a distributor of my film is asking for money from journalists, they’ll
never distribute any of my films again.”151 However, this stance can hardly be presumed to be
universal, particularly as the contracting would likely be handled by agents and publicity teams,
rather than individual actors themselves. And if journalists were willing, or required, to pay for
interviews and accompanying grants of rights in those interviews, it seems unlikely that many
celebrities would choose not to participate.
The Cannes scheme provides an example of how the market may be impacted by a court
decision granting celebrities rights in their interviews. While the prices asked by Alliance were
perhaps unreasonably high,152 the fees that celebrities could charge may be equally high,
depending on the willingness of journalists to pay. Of course, as celebrities are dependent upon
publicity to maintain relevance and media presence, there would be some balance to the fees that
could be charged. However, the willingness of certain journalists and publications to pay the fees
for rights to interviews could price smaller publications and freelance journalists out of the 149 Id.
150 Id.
151 Id.
152 Even according to Alliance’s Vice-President of Publicity and Promotions, who stated on the
record that she’d “never seen such high costs.” Lacey, supra note 140.
32
market entirely, as has happened to independent filmmakers with rising licensing costs. The
transaction costs that would be imposed on journalists if interviewees were granted rights in their
interviews would be far greater than merely drafting standard waivers and grants of rights; the
negotiations around the costs of those rights, and the costs themselves, would seriously impact
the industry.
V. THE ROLE OF JOURNALISTIC AUTHORSHIP IN COPYRIGHT ASSIGNMENT
The approaches courts have taken thus far in attempting to resolve the question of
copyright ownership have fallen short, as each has significant flaws.153 Both the courts and the
Copyright Act of 1976 fail to appropriately account for the difficulties provided by the copyright
of interviews. With the exception of Quinto v. Legal Times, courts have looked solely at the
copyrightability and authorship of the individual statements comprising the interview,154
analyzing the originality of the statements made by the parties155 or the level of authorship
required for those individual statements to be copyrighted.156 This Note propose that a key factor
has been overlooked, to the detriment of the analysis of interview copyright law: the primary role
of the journalist is to be the interview’s author. Section 102 of the Copyright Act of 1976
specifies that copyright protection exists for “original works of authorship.”157 Although in 153 See supra Part II.
154 See generally Newsweek, 503 F. Supp.; Taggart, 2000 WL 1923322; Estate of Hemingway,
244 N.E.2d.
155 Newsweek, 503 F. Supp. at 148 (holding that the interviewer could not have a copyright in
statements made by interviewees because they were not original to the interviewer).
156 Taggart, 2000 WL 1923322 at *4 (holding that interview statements do not reach the level of
authorship or originality for a valid copyright).
157 Copyright Act of 1976, 17 U.S.C. §102(a) (2010).
33
conflict about other aspects of their decisions, various courts have unanimously approached the
question by considering each party to the interview as the author of their individual statements.158
Instead, courts should begin their analysis of an interview by looking at questions and answers as
a unified work, rather than individual statements. If the interview is considered as a single,
undivided whole, in which both parties collaborated, the question of who owns the copyright
becomes somewhat different.
Although many people can be involved in the creation of a copyrightable work, not
everyone involved in the authorial process is considered an “author” for the purposes of
copyright ownership.159 Instead, courts have established various tests for determining which of
several contributing parties can be considered the “author” of a work for copyright purposes. In
Aalmuhammed v. Lee, in which the court attempted to determine whether the plaintiff was the
co-author of a movie, the Ninth Circuit focused on “control” as a determinative factor.160 The
court found that Aalmuhammed was not an author of the movie because he “did not at any time
have superintendence of the work.”161 Because he was not the “inventive or master mind” of the 158 See generally Newsweek, 503 F. Supp.; Taggart, 2000 WL 1923322; Estate of Hemingway,
244 N.E.2d.
159 See Aalmuhammed v. Lee, 202 F.3d 1227, 1233 (9th Cir. 2000) (“So many people might
qualify as an ‘author’ if the question were limited to whether they made a substantial creative
contribution that the test would not distinguish one from another.”); Garcia v. Google, Inc., 786
F.3d 733, 742 (9th Cir. 2015) (holding that the plaintiff’s argument that she had a copyright
interest in her acting performance would “splinter[] a movie into many different ‘works’ …
Simply put, as Google claimed, it ‘make[s] Swiss cheese of copyrights.’”).
160 Aalmuhammed, 202 F.3d at 1235.
161 Id.
34
work, he was found not to be an author.162 This analysis is also applicable to interviews. Both the
interviewer and interviewee participate in the interview, and the words of both parties are
directly incorporated into the final product. However, it is not necessary that both parties are
therefore authors with copyright interests.163 To determine which, if either, party “controls” or is
the “mastermind” of the interview, one must look at how interviews are typically conducted.
An article on interviewing from Columbia’s School of Journalism describes several key
interviewing principles.164 According to the article, “[f]or effective interviews, reporters prepare
carefully, and they ask questions that induce the source to talk freely. Questions are directed at
obtaining information on a theme that the reporter has in mind before beginning the
interview.”165 The burden rests upon the journalist to ensure that an interview is successful and
yields an interesting, insightful conversation with the interviewee.166 When asked “What is the
162 Id.
163 The Ninth Circuit in Aalmuhammed described the constitutional significance of the
requirement of “authorship” for a copyright interest:
The Founding Fathers gave Congress the power to give authors copyrights in order ‘[t]o promote the progress of Science and useful arts.’ Progress would be retarded rather than promoted, if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work. Too open a definition of author would compel authors to insulate themselves and maintain ignorance of the contributions others might make.
Aalmuhammed, 202 F.3d at 1235.
164 Interviewing Principles, COLUMBIA,
http://www.columbia.edu/itc/journalism/isaacs/edit/MencherIntv1.html (last visited Feb. 3,
2016).
165 Id.
166 Id.
35
single most illuminating question I can ask someone?”167 Jodi Kantor, a New York Times
reporter, replied by saying that it does not exist. Instead, “[T]o ask a really high-yielding
question, you need to have done your homework.”168 It is the journalist’s preparation that yields
the most fruitful answers to questions, and the journalist directs and guides the interview to reach
those answers.169 The interviewer decides what questions to ask and the manner with which to
elicit the desired responses, choosing their tone and their manner of questioning, and creating a
rapport with the interviewee that produces material worth publishing.
For a demonstration of how important the interviewer’s skill is in creating a valuable
interview, one only need look to a less successful example: model and actor Cara Delevingne’s
recent interview with Good Day Sacramento.170 Delevingne, who was promoting the movie
Paper Towns, replied sarcastically to questions such as “Did you ever get a chance to read [the
book]?”, referring to the John Green novel upon which the movie was based, and “Is it easier for
you to focus because you’re so busy?”171 When the hosts asked her if she was irritated, “or is it
just us?” she replied, “No, I think it’s just you.”172 The interview was immediately cut short.173 In
a similar vein, actor Robert Downey Jr. provided an even more drastic example of an
167 Friedman, supra note 123.
168 Id.
169 Id.
170 CBS SACRAMENTO, Cara Delevingne Talks About ‘Paper Towns’, YOUTUBE (Jul. 29, 2015),
https://www.youtube.com/watch?v=XWQDGTTY6W8.
171 Id.
172 Id.
173 Id.
36
interviewer’s guidance dooming an interview by walking out when interviewer Krishnan Guru-
Murthy, a presenter with the U.K’s evening news program Channel 4 News, began asking
personal questions about his family and his past.174 Downey later commented on the incident on
the Howard Stern Show, where he strongly criticized the approach Guru-Murthy had taken to the
interview, saying, “I’m completely un-evolved when it comes down to simple boundaries. Like,
‘You know what? You’re weirding me out. You are a bottom-feeding muckraker.’”175 These two
interviews showcase just how much influence the interviewer has over the course of the
interview; the interviewee can choose how to respond, but it is the journalist’s questions that
guide and shape the interview and result in either the success or failure of the whole interview.
From performing the initial subject research, devising a theme, tailoring questions, to
developing a rapport, the interviewer shapes and controls the conversation. It is the journalist’s
work before and during the interview that allows them to engage in a valuable conversation with
the interviewee. Under the descriptions of authorship established by the Ninth Circuit in
Aalmuhammed, the journalist’s role in shaping and controlling the course of the interview
establishes them as the “master mind” of the final product. Rather than addressing an interview
as a contest between two authors for control of the entire work, courts should instead look at the
interview as a unitary whole with two collaborators, only one of whom shapes and guides the
work, despite the other’s input. In this way, the unresolved question of whether the individual
statements of either party are copyrightable is skirted entirely, as are the transactional difficulties
174 CHANNEL 4 NEWS, Robert Downey Jr. Full Interview: Star Walks Out When Asked About
Past, YOUTUBE (Apr. 22, 2015), https://www.youtube.com/watch?v=ALBwaO-rAsE.
175 Hilary Lewis, Robert Downey Jr. Opens Up About Interview Walkout, HOLLYWOOD
REPORTER (Apr. 28, 2015, 9:17 AM), http://www.hollywoodreporter.com/heat-vision/robert-
downey-jr-opens-up-792009.
37
of attempting to either split the copyright ownership or give the interviewee an ownership right
at all. Instead, the creative guidance of the journalist is recognized, and, through an exploration
of the definition of “authorship” in the Copyright Act, the interviewer should receive full
copyright ownership over the interview.
CONCLUSION
The uncertainty caused by the lack of consensus regarding copyright ownership of
interviews is clear. Cases like that of Mike Gerrard and Bill Bryson illustrate the power that
celebrities have over freelance journalists. Those with the power and money to sue can force
other parties to either refrain from republishing the interviews that they have conducted, or pay
the interviewee for a copyright interest that may not even exist.
While courts have disagreed about whether or not individual statements uttered during
interviews are copyrightable, no court has suggested that interviews overall are not
copyrightable. Several options for dealing with interview copyrights have been presented by the
courts. As outlined in this Note, each of these proposed solutions has serious problems, either
doctrinally or consequentially. Therefore, this Note proposes that the question of ownership of
copyright interests should be approached by looking at the interview as a whole, complete work
in of itself, rather than a piecemeal compilation of quotes from separate authors. By looking at
the interview as a whole, and the interviewer’s role in crafting that whole, the authorship of the
interviewer as the “mastermind” of the work becomes clear, suggesting that the entire copyright
interest should belong to the interviewer as the author of the work.
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