Using Copyright Law to Clean Up Your Reputation
Using Copyright Law to control or suppress negative content is a thing these days. If there's a lot of bad stuff about you swirling around on the internet, you might try any avenue to get it removed. In order to take the copyright route to manage your reputation, you have to own the copyright to the material you want to control.
Some reputations are beyond repair, though, copyright ownership or not.
Who Owns the Copyright to Interview Recordings?
Donald Trump is upset with Bob Woodward and Simon & Shuster for releasing eight hours of interviews Woodward conducted of Trump in preparation for his book Rage. Woodward and his publisher have now packaged and released the interviews as an audiobook: The Trump Tapes: Bob Woodward's Twenty Interviews with President Donald Trump.
Trump sued Woodward and Simon and Shuster claiming:
- that Trump should be declared the copyright owner of the interview recordings in their entirety, the audiobook, and all derivatives; or
- that Trump should be declared the copyright owner of his answers to the interview questions; and
- that Woodward broke his promise to use the recordings just for the book Rage; and
- that Woodward and his publisher have to give up most, if not all, the money they are making on the sale of The Trump Tapes.
You can download and read the complaint for yourself here: Trump v. Woodward, et al.
The Rights of an Interviewee
My first thought when I learned about this lawsuit was, "No way. Surely Woodward has enough seasoning as a reporter to tie up any loopholes." Besides, I figured Trump's claims are like those of that actress in the Innocence of Muslims who claimed copyright ownership of her performance in a video she wanted removed from Google search engine results. She lost.
Also, 19 out of 20 of the recordings were made when Trump was President. The Copyright Act makes clear that copyright protection under this title is not available for "any work of the United States Government.” 17 U.S.C §101. A President is certainly a member of the United States Government.
Again, I thought, there is no way this can happen.
Consider the negative impact that a ruling giving ownership or control of recordings to an interviewee would have on journalists, podcasters, multimedia creators, and documentary filmmakers, to name a few interested parties.
It seems, though, that the reality of who owns copyright to interview recordings is more nuanced than my initial knee-jerk reaction of "No way does an interviewee hold the copyright."
What Does the Copyright Office Say?
The position of the Copyright Office on who owns copyright to interview recordings has been consistent for a few decades. Guidance from the Copyright Office is just that -- guidance. A court is not bound by its policies, but what the Copyright Office has to say on an issue is authoritative.
The Compendium of U.S. Copyright Office Practices, 3rd Ed, Section 719 offers the following guidance:
The U.S. Copyright Office will assume that the interviewer and the interviewee own the copyright in their respective questions and responses unless (i) the work is claimed as a joint work, (ii) the applicant provides a transfer statement indicating that the interviewer or the interviewee transferred his or her rights to the copyright claimant, or (iii) the applicant indicates that the interview was created or commissioned as a work made for hire.
Trump has not alleged that Woodward transferred his rights to Trump or that Trump hired Woodward to make the recordings. Without a transfer or work-for-hire agreement, nothing in the Compendium provides a basis for Trump's claim that he owns copyright to the whole kit and caboodle -- the thing he wants the most.
Trump says that there was never a transfer statement or a work-for-hire agreement from him to Woodward which would give Woodward full copyright ownership of the recordings. Trump also says he never intended the interviews to be joint works.
Interview Recordings as Joint Works
If the court finds that the interviews are joint works, then Trump and Woodward are each able to exercise the bundle of rights that comes with copyright ownership. While Trump could go off and publish the full set of interviews himself, he cannot prevent Woodward, as joint owner, from publishing them.
Here's the thing about a joint work, in the absence of a written agreement, each author must account to the other and share any revenue they earn from exploiting their rights in the work. If Trump can't own the entire copyright, he wants half the profits. Maybe this is what he wants the most. Woodward does the work; Trump gets half the money.
Whether a creative work is a joint work turns on the intent of the authors. They had to have intended, at the outset, that their contributions would be merged into a single work. Intention is a slippery notion when there is no contract.
Trump said in his complaint that he did not intend a joint work. Woodward and his publisher are likely to agree with Trump on that point -- that the interview recordings are not a joint work.
Does Trump Own His Answers to Woodward's Questions?
Trump's second best outcome, in his view if he can't own the entire copyright to the interview recordings, is that he is the copyright owner of his recorded interview answers.
As purported evidence of Woodward's and the publisher's acknowledgement that Trump owns copyright in his answers, Trump included a screen shot of the Trump Tapes listing on Barnes and Noble showing Trump and Woodward both included on the byline:
But over on Amazon in a screenshot that was not included in the complaint, Trump is listed as narrator, not an author:
I'm not persuaded that a listing page filled out by an employee of the publisher suffices as evidence of Woodward's intent that Trump should own the copyright to the answers in the interview recordings. Especially when the Amazon listing is decidedly different from the Barnes & Noble listing.
Did Woodward Break a Promise?
Did Woodward promise that he would only use the recordings for the book Rage and nothing else?
In support of that claim, Trump mentions one exchange on the recordings:
Woodward: On the record for the book, unless you—
Trump: For the book only, right? Only for the book.
Woodward: The book only, yeah, I’m not—
Trump: For the book only, right? So there’s no—
Gidley: Right. So there’s no stories coming out, okay.
Hogan Gidley, who served in Trump's administration, was present during this interview. This exchange could be evidence that Trump's concern was "stories" coming out before the release of the book, not that the recordings wouldn't be used for an audiobook.
We've not heard from Woodward on what this exchange might mean from his perspective.
Ultimately, I think the "No copyright protection for government works" defense is going to carry the day, eliminating 19 of the 20 recordings from the case. One interview was conducted when Trump was a candidate for president and would still be at issue. Once the 19 recordings are knocked out of the case, it will probably settle. Trump will get some money and bad law won't be made.
There doesn't seem to be a copyright registration for The Trump Tapes. The audiobook was released on October 24, 2022. Best practices would have been to file the application for registration by January 24, 2023, within three months after publication. Maybe the Copyright Office hasn't had a chance to review the application as of this writing (February 5, 2023). It will be interesting to see how the publisher filled out the application once it is made public.
I’m not at all sure that 19 of the 20 recordings are uncopyrightable government works. Section 105 states that “[c]opyright protection under this title is not available for any work of the United States Government” and Section 101 defines a government work as “as a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” Woodward was not an officer or employee and to whatever extent Trump may be a author or joint author his blabbing away to Woodward was almost certainly not “part of [his] official duties.” All federal officers and employees have private lives. Trump discussing political matters on his own time with a political reporter does not seem to me even close to being part of his official duties.
Interesting point, that the interviews were not part of his official duties and therefore possibly protected by copyright. I’m not sure I agree, though.
The President is the Chief Citizen of the United States who is charged with representing the public interest. The words on these recordings are not the words of a private citizen. He’s not talking about what he bought Melania for her birthday. He’s talking about issues of import to the country and those issues impact us all. Those issues are his job.
Reasonable minds can disagree. President Trump was, in fact, the head of the Executive Branch of the federal government tasked with certain duties specified in the Constitution and statutes — none of which required him to speak with Woodward. No President is “charged with representing the public interest” and when not performing their designated duties each does speak as a private citizen. Just like all the Supreme Court justices who, while sitting on the Court, write books about Democracy, or the Court, or Statutory Construction, or any other legal topic.
Here’s another view on why Trump’s interviews were part of his official duties and not protected by copyright:
“Moreover, an interview is more formal than a mere conversation; and giving interviews to journalists might very well be considered part of a President’s official duties. A public press conference featuring questions and answers would almost certainly be part of a President’s official duties, and it seems logical that a one-on-one interview should also qualify.”
I have a hard time believing that Simon & Shuster doesn’t have a signed agreement for this Work that spells out their rights to use the tapes however they want. If they don’t, then shame on them.
But if the only evidence of intent is that recording clip (that is about as clear as mud) and a couple of entries on sales channels (that get this stuff wrong frequently) combined with a graphic that shows only Woodward as an author (no Trump byline there), I think both sides are going to have a hard time convincing judge and jury on the merits of their respective arguments. In which case the Compendium guidance will likely prevail with both sides owning their respective words. Not the outcome I’d prefer personally, but the one that seems most likely legally.
In short, ambiguity begets bad outcomes.
I think the published B and N screen-shot evidences Woodward’s intent to avail himself of Trump’s notoriety and profit thereby as Trump’s co-author. That intent plus the fact that Woodward did nothing/minimal to contribute to the value of this enterprise (it is entirely the product of the intellectual property of Trump’s thoughts and opinions, without which the interviews have zero value) leans me to the opinion that Trump will prevail on the ownership question and will be entitled to recover all monies that flowed to Woodward, other than quantum meruit monies for scribe work. It is also a great opportunity for a judge who follows the law to put slimy thieves on notice that, just because one has rubbed up against intellectual property, that does not make one the owner or co-owner of that property.
That’s an interesting perspective. If it comes out the way you think it might, the lesson is for interviewers and interviewees alike to put their intent in writing before they begin the work together. Contracts reflect bargaining power.
Good work, Kathryn. We need more articles like this.
Thanks, EN. Sometimes interesting tidbits come out of politics and publishing. Things that might matter to real people, like creative professionals.
Yes, this was both interesting and helpful!
Interesting. It seems that Number 45 is only interested in money. I hope that the ruling does not create even more bad laws. We have enough to deal with now.
I don’t think Trump can stand the idea of someone else making money off his name AND voice.