Introduction
Interviews are frequently an important element of a book, newspaper or magazine article. Copyright law permits an author to automatically claim copyright ownership and protection for an "original" work. Does an interview qualify as a copyrightable work? If yes, who owns an interview – the interviewee or interviewer? On a case-by-case basis courts have either applied federal copyright law, state or common law copyright law when resolving issues involving the protection and ownership interviews.
Federal Copyright ProtectionThe Copyright Act of 1976 protects "original works of authorship fixed in any tangible medium of expression." An interview will be copyright protected if it satisfies the originality" and "fixation" requirements of US copyright. Although the originality requirement is seldom an issue for an interview the fixation requirement sometimes presents problems. The fixation requirement will only be satisfied if the interview is captured in a copy that is "sufficiently permanent" to allow it to be perceived, reproduced or communicated. Whether an interview is "fixed" will depend upon the method used by the interviewer to record or remember the conversation with the interviewee.An audio or video tape recording provides a verbatim account of the interview that will satisfy the fixation requirement. If an interviewer uses shorthand that is later transcribed this usually will create a verbatim account of the interview that will satisfy the fixation requirement. On the other hand, if an interviewer merely takes random notes during an interview, the fixation requirement would only be satisfied if the note taking is extremely thorough and even then the fixation requirement may only be satisfied for those portions of the interview that were preserved verbatim; the interviewer's paraphrasing of the interview would not be considered fixed.Copyright law also requires that a creative work will only be protected when it has been fixed under the "authority" of the author, which in the case of an interview means that the interviewee actually consented to the interview. The authority requirement becomes especially relevant if an interviewer failed to obtain consent from the interviewee to conduct the interview or if the interviewer concealed a recording device from the interviewee.Assuming that an interview is original, fixed and conducted with the consent of the interviewee, then federal copyright law would provide copyright protection for an interview. On the other hand, if the originality and consent requirements were satisfied but the fixation requirement was not, then state or common copyright law might be the only available means to provide protection for an interview.Federal Copyright Law – Who Is The "Copyright Owner" Of An InterviewOnce it has been established that a particular interview qualifies for federal copyright protection, one must then determine who is the copyright owner of the interview. Federal copyright law provides that the author is the copyright owner of a work that satisfies the originality and fixation requirements. Therefore, is the interviewer, the person who ultimately controls the format of the interview, the author? Or is the interviewee, the person whose words and ideas are expressed throughout the interview, the author? Judicial decisions and opinions have been split in deciding this copyright ownership issue.In cases such as Rosemont Enterprises v. Random House (1966), Quinto v. Legal Times (1981) and Taggert v. WMAQ Channel 5, Chicago (2000), the courts decided that the interviewer was the copyright owner of an interview. Although the interviewer may not be the copyright owner of the interviewee's quotations, at a minimum the interviewer would be the copyright owner of the compilation, which includes the interviewee's quotations and interviewer's questions, comments and paraphrasing. In these cases the courts' decisions were in part based upon the (1) consent of the interviewee, (2) recreation by the interviewer of the conversation with the interviewee and (3) interviewer's ultimate control over the organization of the final work. The Taggert court also stated that the interviewee's responses during the interview were not "expression" that could be protected by copyright law but instead were only unprotected "ideas"; a fundamental principle of copyright law is that it does not provide copyright protection for ideas. The above-stated rationale provided sufficient weight for the position that an interview becomes the "literary expression" and property of the interviewer.On other occasions the courts granted the interviewee copyright ownership for his/her words. This will always be the situation when the parties have agreed that the interviewee will be the copyright owner. An interviewee may also be recognized as the copyright owner of an interview if the interviewer has violated the interviewee's right of publicity, which could occur if the interviewer uses the interviewee's distinctive manner of speech and expression for commercial purposes without the interviewee's permission. Another possibility regarding copyright ownership for an interview is the "dual approach" whereby the interview is treated as two distinctly separate works. Some legal commentators, as well as the U.S. Copyright Office, believe this is the preferred ownership approach since the interview process is a joint venture between interviewee and interviewer. Therefore, absent an agreement otherwise, the interviewer and interviewee may both claim copyright ownership to their respective contributions in the interview. This dual approach provides the interviewer with copyright ownership for the organization of the work and the interviewer's questions, comments and paraphrasing of the interviewee's comments and provides the interviewee with copyright ownership for his/her verbatim quotations.The final possibility regarding copyright ownership of an interview is that the interview is treated as a unitary work that has been created by the interviewee and interviewer as joint authors. Under the joint authorship condition, unless otherwise agreed to, the interviewer and the interviewee are treated as joint owners of the copyright in the interview, whereby both would own an undivided interest in the entire interview. This means that the authors can jointly decide how they want to use or license the work. Furthermore, either the interviewer or the interviewee acting individually would have the non-exclusive right to use or license the work without obtaining permission from the other owner as long as an accounting was provided to the other respective owner for such use or license.State Common Law Copyright Protection And OwnershipIf an interview fails to satisfy the "fixation" requirement of federal copyright law an interviewee may still be able to have his/her ownership of the interview protected under state or common law copyright law. However, in two cases that are frequently referred to - Estate of Hemingway v. Random House (1969) and Falwell v. Penthouse International (1981) – neither case expressly recognized a common law copyright protection for oral statements.In Hemingway, A. E. Hotchner, the author of the book Papa Hemingway included quotations from his conversations with his friend and drinking companion, Ernest Hemingway. Hemingway's Estate claimed that it owned the copyright in the deceased Hemingway's conversations with Hotchner and that Hotchner's use of these conversations was an infringement of Hemingway's copyright. The court dismissed the Estate's claim of copyright ownership ruling that Hemingway's words and conduct expressed that Hemingway had intended to permit Hotchner to use their conversations and to publish excerpts from these conversations in Papa Hemingway. Furthermore, the court stated that a speaker could only gain copyright control over his statements if the speaker indicated "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."The Hemingway case has been criticized because it promoted a distinction between oral statements and written statements by imposing stricter requirements for copyright protection of oral statements. Under the Hemingway ruling copyright protection for a speaker's oral statements might only exist if the speaker (1) demonstrated that his/her oral statements showed "unique intellectual product" and (2) had made some indication that he/she planned to claim copyright in the oral statements. Falwell involved an interview that the Reverend Jerry Falwell consented to give to two freelance journalists. After the journalists sold the interview to Penthouse Magazine, Falwell brought legal action by claiming that the interview appeared without his consent. The court rejected Falwell's claim for common law copyright ownership and dismissed his case stating that Falwell "willfully and freely participated in the interview" and "an interview with members of the media is not a private conversation."The Hemingway and Falwell cases analyzed factors such as consent by the interviewee, uniqueness of the oral statements, claims of copyright ownership by the interviewee and the possibility of additional litigation but these cases failed to reach definitive conclusions regarding the common law copyright of oral statements. Therefore, these decisions may provide little assistance to an interviewee trying to claim protection and ownership under state or common law copyright law for their oral statements.Tips On Handling An Interview
To ensure copyright protection and ownership for an interview you should make certain that the interview satisfies the "fixed" requirement under federal copyright law since you do not want to rely upon state or common law for copyright protection.
The interviewer should obtain written consent from the interviewee for conducting and publishing the interview. By obtaining consent the interviewer will be protected from infringement claims, except in any instance where the interviewer's use of the interview goes beyond the scope of the consent that was granted; for example, inaccurate quotations or off-the-record statements.
Resolve all issues of copyright ownership of the interview in a written agreement before engaging in the interview.
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