Earlier this week, you might have seen news that former President Donald Trump has filed a new lawsuit, this time against journalist Bob Woodward and his publisher Simon & Schuster. The suit alleges, among other things, that Bob Woodward and Simon & Schuster are infringing Trump’s copyright interests by copying and distributing eight hours of “raw” interviews that Trump gave to Woodward over the course of 2019 and 2020. The complaint alleges that the interviews were recorded by Woodward for purposes of his book, Rage, which was released in September 2021, on the condition that the recordings only be used for that book. In October of 2022, and without Trump’s consent, Woodward and Simon & Schuster released The Trump Tapes: Bob Woodward’s Twenty Interviews with President Donald Trump, which contained nearly complete audio recordings of the interviews, prompting Trump’s lawsuit.
The suit is actually pretty interesting from a copyright perspective and might yield some lessons for those who work with interviews or oral histories, or who interact with papers of elected officials. We thought it was a good opportunity to talk about some of the issues that it raises that we commonly hear about from authors:
Copyright in Interviews
A important question in the suit will likely be whether Trump has any copyright ownership interest in the interviews. Ownership of copyright in interviews is not as clear cut as you might think. In a typical interview, oral history, or similar recording you’d have at least two people contributing – the interviewer (in this case, Woodward) and the interviewee (Trump). Assuming for a moment that such contributions are sufficiently original and creative–not a high bar– and knowing as we do that they are adequately fixed since they were recorded at the direction of both parties, you’d probably conclude that rights in the interviews would rest at least originally with one or both of Woodward or Trump.
Over the years a few commentators have written about the issue of rights in interviews, and two basic approaches to ownership have emerged:
- A “split copyright” theory: concluding that the contribution of the interviewer and interviewee are actually two separate works, each owned independently of the other.
- A “joint ownership” theory: concluding that the contribution of the interviewer and interviewee were created with “the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole” and therefore there is just one work with two copyright owners.
Surprisingly, there isn’t much clear case law on point. Probably the most helpful case is Suid v. Newsweek, a 1980 district court case that takes the “split copyright” approach. That case was brought as a federal copyright infringement claim by Lawrence Suid, who in 1978 published a 357-page book titled “Guts Glory-Great American War Movies.” The book included previously unpublished interviews that Suide conducted with figures such as Bruce Wayne, Jack Valenti, and Michael Wayne. Newsweek in 1979 published a four page article about John Wayne that included interview quotes copied from Suid’s book. Suid sued for copyright infringement. For the interviews, the court concluded that Suid did not have a valid claim because the quotes originated with the interviewee (in this case, Wayne) and not Suid himself. The court explained, “the author of a factual work may not, without an assignment of copyright, claim copyright in statements made by others and reported in the work since the author may not claim originality as to those statements.”
This “split copyright” approach is also the one apparently taken by the U.S. Copyright Office when it reviews registration applications for interviews. The Copyright Office Compendium III (Section 719) explains that:
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.
Though the Copyright Office guidance isn’t binding on the courts in this case–and for that matter, neither is the decision of the district court in Suid–it is the long-standing position of the Copyright Office going back to at least 1984 (see Section 317 of the Compendium II).
For the “joint copyright” approach – the logic is straightforward and favored by several commenters including prominent treatises such as Patry on Copyright and Nimmer on Copyright. John A. Neuenschwander, author of the extremely helpful A Guide to Oral History and the Law also favors this view. Because a joint work is only created when there is intent that the contributions be merged, it does raise important factual questions about what the parties were thinking when they conducted the interview.
As for Trump and Woodward, the difference between which of these two approaches might apply could matter a great deal. If the interviews are considered two separate works, and Trump actually owns rights in his portion of the interview (a big “if” – more below), he may well have a valid copyright infringement claim. If it is a joint work, however, he may not have an infringement claim but could have a claim to a share of the royalties. That’s because for a joint work, an owner of an interest in that work is allowed full use of the work, but has to account to the other joint owners for any profits resulting from that use.
Whether Trump has any interest at all–either as a joint-owner and independently–depends on at least one other determination: whether Trump’s contributions are a “work of the United States Government.” It’s an important question for this case, but also an issue whose resolution could have important implications for authors who are using source materials that originate with U.S. Government officials, particularly elected officials.
Section 105 of the Copyright Act provides that “Copyright protection under this title is not available for any work of the United States Government.” And, a work of the U.S. Government is in turn defined as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.”
For Trump’s case, this matters because he was President at the time that he granted the interviews. So, the question is whether Trump’s contributions are a “work of the United States government” – i.e., were they prepared by “an officer or employee” of the government, and were they made “as part of that person’s official duties”?
As you might imagine, for most people receiving a paycheck from the federal government, this is a pretty straightforward question. Their employment status and job description are well defined, and it’s usually easy to identify when a work falls within or outside their official duties. For example, a lawyer for the Department of Justice who at night writes fantasy novels would be just as entitled to copyright protection for those novels as any other author would for their own novel. Similarly, when that same lawyer writes a memo for a case they are working on, it would be well within the scope of their employment.
But, the office of the President is a bit different, and as far as we’re aware, there isn’t clear guidance on whether creative works of the President in this context would be covered by Section 105. The statute isn’t widely litigated-–there are only about ten published cases ever that say anything about what it actually means–-but the Supreme Court in Georgia v. Public.Resource.Org recently had the opportunity to explain that “the bar on copyright protection for federal works . . . applies to works created by all federal ‘officer[s] or employee[s],’ without regard for the nature of their position or scope of their authority.” And for its part, the Copyright Office has interpreted this to mean that “this includes works created by the President; Congress; the federal judiciary; federal departments, agencies, boards, bureaus, or commissions; or any other officer or employee of the U.S. federal government while acting within the course of his or her official duties.” One would imagine that Trump’s lawyers would push back on such a view–potentially arguing that the President is neither an “officer” or “employee” of the U.S. Government, but in a category all its own (an argument not without precedent in other contexts) or alternatively, that even if he is covered as one of those categories of individuals, his interviews were not part of his “official duties.” Whether either argument would be successful, we don’t know.
If this suit actually moves forward, it will be an interesting one to watch, especially for authors engaged in writing that relies on interviews, oral histories, or materials related to the President.
Other notes, if you care to read more
If you’re interested in the issue of copyright in interviews, there are a handful of cases addressing ownership in interviews under common law copyright (i.e., state law that was formerly applicable, but not here). A few of the most cited are Estate of Hemingway v. Random House, a NY case from 1968 in which Hemingway’s estate asserted a common law copyright claim against Random House for publication of Hemingway’s oral statements, and Falwell v. Penthouse International, a case arising under Virginia law in which Reverend Jerry Falwell sued Penthouse for publication of his oral statements. Both those cases raised issues about rights in oral statements that were never “fixed” (e.g., written down, recorded) with the authorization of the speaker. But neither is particularly helpful for this Trump-Woodward case, both because federal law applies and because it seems clear that Trump authorized the recordings.
You may also encounter an unusual case, arising under federal copyright law, titled Taggart v. WMAQ Channel 5 Chicago, a short opinion from the Southern District of Chicago from 2000. The case was brought as a pro se action by Arthur Taggart, an individual who was convicted of and incarcerated for multiple felonies. Taggart was interviewed by WMAQ, a Chicago TV station while in prison. WMAQ then broadcast portions of those interviews, which Taggart did not consent to, highlighting unfavorable facts that Taggart admitted to on tape. Taggart sued for copyright infringement, but the court dismissed his claim. The court made several highly questionable assertions about Taggart’s potential interest in the work. For example, suggesting that even though the work was recorded with Taggart’s approval, because Taggart was not directly in control of the recording device, he could not claim an interest: “if anyone was the ‘author,’ ” the court reasoned, “it may very well have been the cameraman who fixed the ideas into a tangible expression, the videotape.” The court also suggested that, despite Taggart communicating quite vividly in the interview, and WMAQ reproducing his expression verbatim, “the utterances made during an interview are not an expression of an idea for the purpose of copyright law, they are simply an idea, and thus not subject to copyright protection.” This approach to fixation and creativity have been criticized in several places (e.g., this helpful law review note by Mary Catherine Amerine) and seems to us a clear outlier.