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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