When does an interview become copyrightable?
The answer is it depends. Copyright of speech given during an interview relies heavily on the “fixation” element of copyright law. When a work is fixed in a copy or recording, the work is created. This gives the work its copyright. Therefore, when an interview is physically recorded it becomes copyrighted.
How could the person being interviewed own the copyright to an interview?
This may be a surprise but there are moments when the person being interviewed could in fact have copyright ownership in their words. For example, if the person being interviewed receives a list of questions from the interviewer and records their calculated responses, they could have copyright ownership in their answers because they not the interviewer actually wrote down or otherwise recorded their response. However, courts are hesitant to apply this concept broadly to spoken interviews because of the impact it could have on the First Amendment and the heavy caseload it would bring to an already overloaded court system. See Falwell v. Penthouse Intern., Ltd. This also opens the door for other legal arguments such as fair use. Furthermore, there are times when contractual releases could affect the copyright and alter default copyright rules.
When do problems with interview ownership arise, and who usually owns the copyright?
Most often when problems with interview ownership arise it’s because persons being interviewed are unhappy with the way an interviewer uses their responses during interviews to mislead readers or viewers of a broadcast. This causes interviewees to claim their copyright was infringed because they claim to own the copyright to their speech during the interview. However, the courts have repeatedly rejected this argument, relying on 17 U.S.C. §102(b). The language of this section reads:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Specifically, courts focus on the interviewed person’s speech as an “idea” or “procedure” which copyright law does not extend over. Thus, persons participating in Q & A sessions have no copyright to their speech and cannot claim infringement if their words are taken out of context. Speech itself is merely an idea and copyright ownership over “the spoken word runs afoul with first amendment freedom of speech and freedom of the press protections.” See Falwell v. Penthouse Intern., Ltd.
Recently, in Taggart v. WMAQ Channel 5 Chicago, the court held that an inmate had no copyright ownership over his speech during an interview recorded by (and later broadcast by) the television company. The inmate argued that his speech was protected by copyright law because his responses were a “performance”. The court disagreed saying the inmate’s speech was only an idea, and that ideas are not protected by copyright law. Further the court said, “the copyright itself lies within the photographing or otherwise recording of the event, not in the event itself.” This means that the owner of the copyright was the broadcast company because they video recorded (fixed) the interview.
What are some methods to record an interview and what should the person being interviewed do?
The most successful way to fix an interview is for interviewers to audio record or hand write the responses of the person being interviewed. If the interview is recorded by hand, it is helpful if the writing is legible and clearly communicates the conversation because it may help solve questions about fixation. Short hand that only describes excerpts from the interview typically are not enough to constitute fixation and copyright ownership. So please remember, if there is no fixation of the interview then no copyright exists in that interview.
Further, if you are being interviewed please be aware that you do not possess ownership over your responses in most situations. It is always best to briefly think about your answer before you respond to avoid the misuse of your words by others. And if you truly don’t feel comfortable being interviewed by a particular media source, remember you always have the power to say no to doing the interview.
If you have any questions about the benefits and downsides of modern copyright laws, feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.
** Special thanks to New Media Rights Legal Intern Amy Vaughan for helping to create this Copyright FAQ**
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