A Preliminary Analysis of Trump’s Copyright Lawsuit Over Interview Recordings (Trump v. Simon & Schuster) (Guest Blog Post)
By Guest Blogger Tyler Ochoa
[Eric’s note: Prof. Ochoa calls this a “preliminary” analysis, but that doesn’t mean it’s short!]
The lawsuit potentially raises fundamental issues concerning freedom of speech and the right of journalists to publish sound recordings and transcripts of interviews of public officials, conducted on the record, with the admitted consent of the subject. Trump’s lawsuit alleges, however, that the consent he granted to Woodward was limited to publishing excerpts from the interviews in book form, and that he did not consent to publication of the sound recordings or of full transcripts thereof. If Woodward has express consent from Trump in writing, or in recorded form, that will determine the issue. If not, the court may have to address several other interesting, rarely-litigated issues concerning the proper scope of copyright in recorded interviews.
Based solely on the complaint that was filed, there are six major issues raised by the case: First, were the recorded interviews a copyright-eligible “work of authorship”? Second, if so, who is the initial owner of the copyright(s)? Third, is Trump’s claim of ownership barred by 17 U.S.C. §105, as a “work of the United States Government”? Fourth, if not, can Trump circumvent the registration requirement by seeking a declaratory judgment, or will he have to comply with the registration requirement? Fifth, assuming Trump owns a valid copyright, did he grant an implied license to Woodward to publish transcripts of the interviews and/or the recordings themselves? Sixth, assuming Woodward published copyrighted material without Trump’s authorization, was he permitted to do so, either as a fair use, or by the First Amendment?
The bottom line: even if he gets past the implied license problem, Trump still has to survive several other substantive and procedural hurdles to recovery. Thus, Trump will almost certainly lose the lawsuit as it is currently framed. Nonetheless, unlike so many of Trump’s legal claims, the claims raised by this lawsuit are not completely crazy. If he can find competent counsel to represent him, Trump may be able to file an amended complaint that stands a significant chance of surviving a motion to dismiss.
Background: A Few Basic Copyright Principles
Before 1978, the United States had a dual system of copyright protection. Before a work was “published,” it was protected only by state law (common-law copyright). Once a work was published, state law was divested, and one of two things happened. If the work was published with proper copyright notice, it received a federal statutory copyright. If the work was published without proper copyright notice, the work entered the public domain. (There was also a provision allowing registration of an unpublished work, which would replace the common-law copyright with a federal statutory copyright.)
Effective January 1, 1978, the date of federal copyright protection was moved back from the date of first publication to the date the work was “fixed in a tangible medium of expression,” or permanently recorded in some form. In theory, state law can still protect works before they are fixed (such as improvised lectures and performances); but as soon as a work is “fixed” with authorization, federal statutory copyright attaches, and state law is preempted.
Why does this matter? Some important case-law precedents (discussed below) date from before 1978, when the rules were different. Thus, those precedents may not necessarily apply today in the same way that they ordinarily would.
Under the 1976 Copyright Act, copyright subsists automatically in any “original work of authorship” that is “fixed in any tangible medium of expression.” [17 U.S.C. §102(a)] Copyright law distinguishes between the “work” (an intangible combination of words, images, and/or sounds) and any material objects (such as a manuscript, canvas, or computer memory) in which the work is fixed. [17 U.S.C. §202(a)] “Fixed” means that the work is embodied in a material object in some permanent form. A work is fixed in either a “copy” or a “phonorecord.” “Phonorecords” are defined as material objects in which only sounds are fixed, while “copies” are defined as material objects in which any other kind of work is fixed. [17 U.S.C. §101]
Issue 1: Are the recorded interviews a copyright-eligible “work of authorship”?
Section 102(a) lists eight categories of works of authorship. Here, the recorded interviews are copyright-eligible works under two of those categories: “literary works” and “sound recordings.”
“Literary works” are defined as “works … expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.” [17 U.S.C. §101] The recorded interviews meet the definition: they are expressed in words, and they are embodied (and therefore “fixed”) in tapes or computer memory. (Both of those are examples of “phonorecords.”)
“Sound recordings” are defined as “works that result from the fixation of a series of musical, spoken, or other sounds, … regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.” [17 U.S.C. §101 https://www.law.cornell.edu/uscode/text/17/101 (emphasis added)] The recorded interviews meet the definition: they are series of spoken sounds, and they are embodied (and therefore “fixed”) in tapes or computer memory.
Thus, each of the recorded interviews comprise two copyrightable works of authorship: the recorded interviews themselves (as sound recordings), and the series of words spoken in those interviews (as literary works). “Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” [Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991)] The words spoken, and the manner in which they were spoken, were original to Woodward and Trump, and there is no doubt that they are minimally creative. The inescapable conclusion is that the recorded interviews are copyrightable works of authorship, both as sound recordings and as literary works.
There are two precedent cases that suggest otherwise; but on closer inspection, both of them involved common-law copyright in unpublished works (one decided before the 1976 Act came into effect); and one of them can also be distinguished on factual grounds. Moreover, to the extent they are in conflict with the 1976 Act, the federal statute must prevail.
Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341 (N.Y. 1968), involved “Hemingway’s conversation[s] with [writer A.E.] Hotchner, in which others sometimes took part, [that were] filled with anecdote, reminiscence, literary opinion and revealing comment about actual persons on whom some of Hemingway’s fictional characters were based. Hotchner made careful notes of these conversations soon after they occurred, occasionally recording them on a portable tape recorder.” After Hemingway’s death, Hotchner published a book containing “lengthy quotations from Hemingway’s talk, as noted or remembered by Hotchner.” Hemingway’s estate sued, claiming a common-law copyright (under New York law) in Hemingway’s comments, anecdotes, and opinions as his “literary property.” The New York Court of Appeals rejected the claim on the grounds that Hemingway had granted Hotchner an implied license to publish such material. In dicta, however, it suggested that everyday conversation ordinarily should not be the subject of copyright:
[W]e 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. Conceivably, there may be limited and special situations in which an interlocutor brings forth oral statements from another party which both understand to be the unique intellectual product of the principal speaker, a product which would qualify for common-law copyright if such statements were in writing….
Assuming, without deciding, that in a proper case a common-law copyright in certain limited kinds of 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. In the conventional common-law copyright situation, this indication is afforded by the creation of the manuscript itself. It would have to be evidenced in some other way if protection were ever to be accorded to some forms of conversational dialogue.
23 N.Y.2d at 348-49. Even assuming this dicta should somehow be applied in deciding whether a conversation is a “work of authorship” for purposes of federal law, it is easily distinguishable. Woodward’s interviews with Trump occurred in a much more formal setting that the everyday conversations that Hemingway had with Hotchner. The interviews had a beginning and end; and even though the questions and answers were improvised, the parties both knew that they were creating something on and for the record, and not simply shooting the breeze.
A case that bears a closer resemblance to Trump’s is Falwell v. Penthouse Int’l, Inc., 521 F. Supp. 1204 (W.D. Va. 1981), which involved two interviews of the Reverend Jerry Falwell in 1980 that were published in Penthouse Magazine in March 1981. “Reverend Falwell now claims that the interview appeared without his consent and contrary to specific conditions given orally to defendants Brata and Duncan at the time of the interviews.” Falwell claimed common-law copyright in the interviews and sought damages (after getting a temporary restraining order for three days but unsuccessfully seeking a preliminary injunction). Again, the court denied relief on the grounds of an implied license: “plaintiff was aware that his comments were not made in the context of a private conversation but rather were destined expressly for dissemination to the public.” But the court also suggested that an interview simply was not a proper subject for common-law copyright:
Plaintiff’s claim of copyright presupposes that every utterance he makes is a valuable property right. If this were true, the courts would be inundated with claims from celebrities and public figures all of whom may argue that their expressions should also be afforded the extraordinary protection of copyright.… Plaintiff cannot seriously contend that each of his responses in the published interview setting forth his ideas and opinions is a product of his intellectual labors which should be recognized as a literary or even intellectual creation….
However different or unique plaintiff’s thoughts or opinions may be, the expression of those opinions or thoughts is too general and abstract to rise to the level of a literary or intellectual creation that may enjoy the protection of copyright. Although the general subject matter of the interview may have been outlined in the reporters’ minds prior to their meeting with plaintiff, the actual dialogue, including the unprepared responses of plaintiff, was spontaneous and proceeded in a question and answer format. There is no defined segregation, either by design or by implication of any of plaintiff’s expressions of his thoughts and opinions on the subjects discussed which would aid in identifying plaintiff’s purported copyrighted material.
521 F. Supp. At 1207-08. Although the court did not cite Estate of Hemingway, it seems clear that it was influenced by the dicta in that case. In my opinion, however, the application of that dicta in Falwell was incorrect. There is nothing in the Copyright Act that suggests that improvised “works” should be treated any differently from pre-planned “works”; the only requirements are that a work must be “original” and it must be fixed or recorded in some permanent form “by or under the authority of the author.” I agree with Estate of Hemingway’s premise that ordinary, everyday conversation is not a “work of authorship”; but a formal interview typically has defined boundaries that easily “mark off the utterance in question from the ordinary stream of speech.”
The Falwell court was on solid ground in denying relief on the grounds of an implied license. To the extent it suggested that an interview was not a “work,” however, the opinion defies both common sense and common practice. Either Falwell or Penthouse, or both, would have been justified in complaining if the interview had been published without authorization in some other publication. The parties could only claim a right to exclude others from doing so if the interview was an “original work of authorship” within the meaning of the Copyright Act.
Finally, it is the practice of the Copyright Office to accept interviews for registration. “An interview may be registered if the conversation has been fixed in a tangible medium of expression and if it contains a sufficient amount of creative expression in the form of questions and responses. Specifically, an interview may be registered as a literary work if it has been fixed in a written transcript, an audio recording, a video recording, or other medium of expression.” Compendium of Copyright Office Practices §719 (3d ed. 2021) [Compendium III]
The Copyright Office also notes the distinction between the sound recording and the interview as a literary work: “[A] sound recording and the … underlying content embodied in that recording are separate works…. A registration for a sound recording covers the performance and production authorship involved in creating that recording, but does not cover the … underlying content embodied in that recording. Likewise, … a registration for a dramatic work or a literary work covers the text and music embodied in that work, but it does not cover a particular recording of those works.” [Compendium III, §803.8(A)] The audiobook reproduces both the sound recordings and the literary works embodied in them; while an ebook or paperback reproduces only the literary works.
Issue 2: Who are the “authors” of the copyrights in the interviews?
17 U.S.C. §201(a) provides: “Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.” If the work is a work made for hire, however, “the employer or other person for whom the work was prepared is considered the author for purposes of this title.” [17 U.S.C. §201(b)] Authorship must be assessed separately for the interviews as literary works (text) and for the recorded interviews as sound recordings.
For the interviews as literary works, the practice of the Copyright Office is clear: “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.” [Compendium III, §719]
The interviews cannot meet the statutory definition of a work made for hire: Trump was not an employee of either Woodward or Simon & Schuster, and a “specially ordered or commissioned” work cannot be a work made for hire unless it falls within one of nine specified categories (the interviews might qualify as a “compilation” or “collective work”) and there is a signed written agreement specifying that the work is made for hire. [§101] A transfer of copyright ownership also requires a signed writing. [17 U.S.C. §204(a)] Thus, in the absence of a signed writing, Woodward and Simon & Schuster cannot claim a copyright in Trump’s responses to the interviews unless the work was a “joint work.”
A “joint work” is defined 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.” [§101] The House Report states that a work is a joint work “if the authors collaborated with each other, or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors.” Interview questions and responses are easily separable, but they could qualify as a “joint work” as “interdependent parts of a unitary whole.” Questions and answers are normally interdependent; often the answers only make sense in the context of the questions. If the parties wanted to claim authorship of an interviews as a joint work, they may do so.
Case law, however, has imposed two additional requirements. [See Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991) and Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000).] First, each author’s contribution must be independently copyrightable; that is, it must consist of original expression (as opposed to ideas or research). [945 F.2d at 507-09; 202 F.3d at 1233-34] That does not pose any difficulty here; one assumes that both the questions and answers contain some modicum of original expression. Second, the parties must have intended to be joint authors. [945 F.2d at 506-07; 202 F.3d at 1231-32] Here, is seems quite clear that neither Woodward nor Trump intended to be joint authors with each other. The interviews were “on the record,” and Trump concedes that Woodward had permission to publish quotes from the interviews in his book Rage. In doing so, Woodward selected and arranged quotes and combined them with substantial original reporting, so Rage was an “original work of authorship” of which he was the sole author. As for the publication of the interviews themselves (as sound recordings and as transcripts), Woodward must have believed that he had implied permission, or that publication was protected by the First Amendment; but nothing indicates that Woodward intended to be a “joint author” of the interviews with Trump. Likewise, paragraph 47 of Trump’s complaint specifically alleges “President Trump never sought to create a work of joint authorship, and in the hours of the Interviews, there is neither allusion to nor confirmation of such.” Moreover, Trump seeks a declaration “that he owns the Interview Sound Recordings, Audiobook, and Derivative Works in full and therefore is entitled to all revenues arising from the exploitation of such works.” [Complaint ¶ 64] In the alternative, Trump pleads that he owns the copyright only in his responses to Woodward’s questions.
Thus, under existing case law, the answer is quite clear: the interviews are not joint works. Woodward owns the copyright in his questions only (and perhaps in the edited version of the transcripts, to the extent the cumulative edits demonstrate an original selection of material), while Trump owns the copyright in his responses to the interview questions. Absent consent, fair use, or a First Amendment defense, publishing the interviews without Trump’s consent is therefore a violation of his copyright.
This strikes me as the wrong result. In my opinion, whether they intended to be joint authors or not, Trump and Woodward together created 20 works of joint authorship in the question-and-answer format of the 20 interviews. Joint authors are co-owners of the copyright, and either author may publish or otherwise exploit a joint work without the permission of the other co-authors, although there is an obligation to share the profits from any such endeavours. If the interviews are considered joint works, then (absent any valid defenses) Trump should only be entitled to a state-law action for an accounting of profits. He should not be able to enjoin publication of the interviews as a copyright violation.
But Second Circuit case law is clear: there cannot be inadvertent joint authorship. In 16 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2d Cir. 2015), the producer of a film secured work-for-hire agreements from all of the contributors to a motion picture except the director. After negotiations between them fell apart, both parties sued, each claiming exclusive ownership of the movie footage. The court held that because each of them was seeking a declaration of sole ownership, the parties could not be joint authors. Because their contributions were inseparable, the court therefore had to determine which one of them was the “dominant” author, and it awarded ownership of the entire motion picture to the producer (despite the absence of a valid work-for-hire agreement). In my opinion, this decision was incorrect; there should be limited situations where the parties have created a joint work through collaboration in fact, even if they subjectively did not intend for the work to be a joint work. Were the courts to recognize such a situation, it would fit the Trump interviews as well. Fortunately, the court need not award the entire copyright in the recorded interviews to either Trump or Woodward. Because the questions and answers are separable, it can follow the Copyright Office’s default practice: for the literary work(s), Woodward owns the copyright in his questions, and Trump owns the copyright in his answers.
As for the sound recordings, the copyright for a sound recording consists of “the performance and production authorship involved in creating that recording, … [rather than] the underlying content embodied in that recording.” [Compendium III, §803.8(A)] Here, the recorded “performance” is by Woodward (speaking the questions) and Trump (speaking the answers). Indeed, Trump’s complaint alleges that he is credited as a “narrator” in the audiobook version of the interviews. (That is true in online listings for the book; but I could not confirm that such a credit appears anywhere on the cover.) Woodward also potentially has a copyright claim as the “producer” or “sound engineer” of the recordings, although it is doubtful that merely turning on a recording device to capture the interviews constitutes an “original” copyrightable contribution. (“Production authorship” typically involves far more elaborate sound engineering and mixing in a professional studio, not merely standard interview recordings with simple equipment.)
Here a different case law precedent comes into play. In Garcia v. Google, 786 F.3d 733 (9th Cir. 2015) (en banc), an actress was hired to perform in a movie, ostensibly an action-adventure movie set in Arabia. Without any further consent, her scenes were used in an anti-Islamic propaganda film (with her voice over-dubbed with dialogue insulting the Prophet Muhammed). When the film was posted to YouTube, she (and everyone else involved) started receiving death threats. Instead of suing the producer of the film, however, Garcia sued Google, seeking to have the film taken down from YouTube. Although she was not the copyright owner of the film, she claimed a copyright in her performance as a separate work of authorship. A panel of the Ninth Circuit initially agreed; but on rehearing en banc, the Ninth Circuit held that her performance was not a separate work of authorship; instead, it was an inseparable part of the movie as a “unitary whole.”
Garcia v. Google suggests that, unlike the interview questions and answers, the performances in the sound recording should not be disaggregated or separated from each other; instead, there should be a single copyright in each of the sound recordings as a unitary whole. If so, the sound recordings are “joint works,” authored and owned by Woodward and Trump jointly. This result raises the same problem as with the interviews as literary works: it is highly unlikely that the parties intended to create a work of joint authorship. But in my opinion, that is the correct result for the sound recordings, whether the questions and answers are considered separable as literary works or not.
Some commentators have objected that Trump can’t be the author of either work because he didn’t make the fixation, nor were the interviews fixed on his behalf. Woodward made the recordings for his own use, not for Trump’s. But a work doesn’t have to be fixed “on [the author’s] behalf”; it only has to be fixed “by or under the authority of the author.” [17 U.S.C. §101 (definition of “fixed”)] Woodward had Trump’s consent to record the interview, so assuming that Trump otherwise qualifies as an author (as a creator of original expression), his interview responses were fixed “under the authority of” (i.e., with the authorization of) the author. In other words, I don’t think the person making the fixation has to be acting as an agent for the author (as the principal in a principal-agent relationship). I think it is sufficient that the person making the fixation had the consent of the author, for the fixation to be made “under the authority of” the author.
[Eric’s comment: Prof. Ochoa and I have been engaged in a lengthy conversation about this paragraph. As the last sentence indicates, Prof. Ochoa’s position is that the author’s “consent to record” constitutes “fixation” under the author’s “authority.” For me, the statutory requirement of “authority” connotes something more than mere “consent to record.” This gave me unsettling flashbacks to the Innocence of Muslims case and the potentially chilling implications of saying that Garcia had a protectable copyright in her expression and the producer fixed it for her because she had consented to being recorded. In many circumstances, it won’t matter if there is a separate copyright in the words of an interviewee’s oral remarks because that copyright would be functionally unenforceable for a variety of reasons, several of which are discussed in this post. However, the fixation question could be largely or entirely dispositive to Trump’s situation. Thus, I don’t agree with Prof. Ochoa’s ultimate conclusion that Trump’s copyright claim could have merit if he framed it properly, because I think Trump didn’t fix his words as an author.]
Issue 3: Is Trump’s claim of ownership barred by 17 U.S.C. §105, as a “work of the United States Government”?
17 U.S.C. §105 says: “Copyright protection under this title is not available for any work of the United States Government.” Section 101 defines a “work of the United States Government” as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.”
There is very little case law interpreting this definition; and most of the case law that does exist was decided under the comparable provision in the 1909 Copyright Act. For example, in Public Affairs Associates, Inc. v. Rickover, 284 F.2d 262 (D.C. Cir. 1960), vacated and remanded, 369 U.S. 111 (1962), a publisher sought a declaratory judgment that 23 speeches by Vice-Admiral Hyman Rickover should be deemed to be “publication(s) of the United States Government” under §8 of the 1909 Act. The D.C. Circuit held that this section was limited to “statements called for by his official duties or explanations as guides for official action,” and that the speeches were eligible for copyright. It nonetheless held that Rickover had forfeited the copyright by publication without proper notice. The U.S. Supreme Court vacated the opinion and remanded, holding that the “Agreed Statement of Facts” was inadequate, and that more evidence was required as to the Admiral’s official duties and the involvement of other government personnel in the preparation of the speeches. On remand, the Admiral surrendered his claim to copyright in all but two of the speeches, apparently conceding that those speeches were made in the course of his official duties. 268 F. Supp. 444 (D.D.C. 1967). As for the two speeches that he made for outside organizations on the subject of education, the lower court held that those speeches were made in a purely private capacity, and did not constitute any part of his official duties.
There is also one important case decided under current section 105 that suggests the statute may be given a narrow interpretation. Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d Cir. 1983), rev’d on other grounds, 471 U.S. 539 (1985), concerned the unauthorized publication of quotations of former President Gerald Ford’s soon-to-be-published memoirs. The Second Circuit agreed that testimony by President Ford before the Hungate Committee, published in an official government report, was a “work of the United States Government” within the meaning of section 105; but then it added the following:
Appellants ask us to find that the words Ford spoke when he was in office may not be copyrighted by him as they, too, are “work[s] of the United States Government.” 17 U.S.C. § 105. We cannot go so far. The conversations originated with Ford, and, unlike the testimony before the Hungate Committee, were neither fixed as “writings” nor publicly delivered as part of any person’s “official duties.” 17 U.S.C. § 101. Indeed, it pushes language beyond its common sense bounds to characterize Ford’s conversational words as “a work prepared” by him. Although another may pluck the facts from unrecorded words uttered by a public official while carrying out his public tasks, the phrasing of the sentence itself may be copyrighted by that official if and when it is later written down.
723 F.2d at 206. (The Second Circuit nonetheless held that the published quotations were a fair use. The U.S. Supreme Court reversed, holding that quoting from Ford’s memoirs (written after he left office) before the book was officially released was not a fair use. The Supreme Court did not comment on the brief passage about section 105.)
This passage suggests that speeches delivered by Trump as President would be U.S. Government works, but that any private conversations he has are not, and that he could claim copyright in those conversations. I think any such interpretation would face serious First Amendment problems (see Issue 6 below). Moreover, an interview is more formal than a mere conversation; and giving interviews to journalists might very well be considered part of a President’s official duties. A public press conference featuring questions and answers would almost certainly be part of a President’s official duties, and it seems logical that a one-on-one interview should also qualify.
[Eric’s comment: In Knight First Amendment v. Trump, the Second Circuit held that Trump’s Twitter account was a government account for purposes of the First Amendment “public forum” analysis. This might suggest a broader reading of Trump’s “official duties” for purposes of section 105. The Supreme Court later vacated this holding as moot, however.]
If the interviews were given by Trump as part of his official duties, he cannot claim copyright in the interviews, so they can be published by Simon & Schuster (or anyone else) without his consent. A lower court will be sorely tempted to grant summary judgment on this ground, because doing so would permit the court to avoid all of other hard questions involved in the case: are the interviews a joint work? What was the scope of the implied license that Trump granted to Woodward? Is there a First Amendment problem here? Unfortunately, section 105 is not a complete answer, because one of the 20 interviews took place before Trump was elected, when he was still a candidate. Nonetheless, as to the other 19 interviews, I would expect this to be a central issue if the case goes forward.
Issue 4: Is Trump’s claim barred by failure to comply with the registration requirement?
17 U.S.C. § 411(a) provides that (with certain exceptions), “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” The recorded interviews were likely first published in the United States, so they are a “United States work,” and the registration requirement applies. (Under Article 5(5) of the Berne Convention, the United States cannot require registration for a work whose “country of origin” is another nation that is a party to Berne; but it can require registration for a work whose “country of origin” is the United States.)
Here, Trump did not register any claim of copyright with the U.S. Copyright Office. Doing so before the interview recordings were published would have been impossible, because registration requires at least one deposit copy (two if the work is “published”), and the recordings were in Woodward’s possession. But now that the interview recordings have been published, Trump simply needs to submit two complete copies of the audiobook to the U.S. Copyright Office, with an application for copyright in his name (or as a joint work), and the $65 fee. (He probably should pay $800 dollars for special handling, to receive a decision within days. Otherwise, it usually takes several months for the Copyright Office to act on the application; and the U.S. Supreme Court has held that the Copyright Office must act on the application before the lawsuit can be filed.) Moreover, as long as the copyright claimant is the same for the literary work and the sound recording, only one application and filing fee are needed. 37 C.F.R. § 202.3(b)(4). The Copyright Office does not resolve conflicting claims of copyright ownership; it allows any purported authors to register their claims and leaves it to the courts to decide who the actual author(s) is/are. Trump has a legitimate claim to being at least a joint author of the interviews and the sound recordings, and perhaps a sole author of the interview responses, so he should be able to obtain a registration. And even if the Copyright Office refuses to register his claim, the statute allows a rejected applicant to file an infringement action.
But Trump is an impatient man, and his complaint tries to avoid the registration requirement by pleading the claim as an action seeking a declaratory judgment of copyright ownership and an accounting of profits. If Trump were seeking a declaration of joint authorship, the federal courts would have subject-matter jurisdiction over that claim [28 U.S.C. § 1338], and the state-law action for an accounting of profits between co-owners would be proper under either the court’s supplemental jurisdiction [28 U.S.C. §1367(a)] or diversity of citizenship [28 U.S.C. §1332]. (Trump is a resident of Florida, Woodward is a resident of D.C., and Simon & Schuster and Paramount have their principal place of business in New York; and the amount in controversy exceeds $75,000.) But the Complaint seeks a declaration that Trump is the sole author of the recorded interviews, or at least that he is a sole author of his interview responses. That means, in effect, that Trump claims that Woodward and Simon & Schuster are infringers who are violating his exclusive rights as a copyright owner, and the Complaint specifically claims actual damages plus an accounting of the defendant’s profits, both of which are monetary remedies provided for infringement claims under the Copyright Act. [17 U.S.C. §504(b)] Thus, Trump’s first claim is a “civil action for infringement of the copyright in a United States work,” whether the Complaint calls it one or not; and a court should not allow Trump to avoid the registration requirement simply by putting a different label on the claim and also seeking a declaratory judgment.
For this reason alone, Trump’s lawsuit should be dismissed unless and until he complies with the registration requirement. Once he has done so, he may re-file the lawsuit. Even if he does so, however, his failure to register in advance will bar any claim that he has for statutory damages or recovery of his attorneys’ fees. To claim those remedies, the work must have been registered before the infringement commenced, or within three months after first publication. [17 U.S.C. § 412] (Trump’s lawsuit also claims punitive damages, but both the Copyright Act and case law are clear that punitive damages are not available in copyright litigation.)
Issue 5: Did Trump grant an implied license to Woodward to publish transcripts of the interviews and/or the sound recordings themselves?
A copyright owner has five exclusive rights, including the right to reproduce the work in copies or phonorecords, and to distribute copies or phonorecords of the work to the public. [17 U.S.C. §106(1),(3)] Copyright infringement is doing any of those five things without the permission of the copyright owner (unless there is a statutory exception). Here, Simon & Schuster have published (reproduced and distributed) the recorded interviews as an audiobook, which is a “phonorecord” within the meaning of the Act; and they have published transcripts of the interviews as a paperback and an ebook, both of which are “copies” within the meaning of the Act. Thus, if Trump has a valid claim of copyright ownership, Woodward and Simon & Schuster must show either that they had express or implied permission to publish the material, or that a statutory exception (such as “fair use”) applies.
A transfer of copyright ownership from one owner to another must be in a signed writing [17 U.S.C. §204(a)]; but a non-exclusive license is expressly excluded from the statutory definition of a “transfer” [§101], so a nonexclusive license can be granted orally or implied by conduct. [Effects Associates, Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990).] If Woodward has an express license from Trump to publish the recorded interviews, that will determine the claim. If not, Woodward has to rely on an implied nonexclusive license.
Both Estate of Hemingway and Falwell (see Issue 1) were resolved on the grounds of an implied license. In Estate of Hemingway, the court noted:
[I]t had become a continuing practice, during Hemingway’s lifetime, for Hotchner to write articles about Hemingway, consisting largely of quotations from the latter’s conversation — and of all of this Hemingway approved. In these circumstances, authority to publish must be implied, thus negativing the reservation of any common-law copyright….
For present purposes, it is enough to observe that Hemingway’s words and conduct, far from making any such reservation, left no doubt of his willingness to permit Hotchner to draw freely on their conversation in writing about him and to publish such material. What we have said disposes of the plaintiffs’ claim both to exclusive and to joint copyright….
23 N.Y.2d at 348-50. Similarly, in Falwell the court found:
In the case at bar, plaintiff willfully and freely participated in the interview. An interview with members of the media is not a private conversation…. Moreover, plaintiff was aware that his comments were not made in the context of a private conversation but rather were destined expressly for dissemination to the public.
521 F. Supp. at 1208.
Here, Trump was aware that he was being interviewed; he was aware that the interviews were “on the record”; and he was aware that the interviews were being recorded, so he clearly granted Woodward some sort of an implied license to publish quotations from the interviews in a book. Trump concedes as much in his Complaint: “President Trump had consented to being recorded … for the purposes of ‘the book,’ namely Rage.” [Complaint ¶ 37] (Woodward published Rage in 2020, two years before The Trump Tapes were released.)
But Trump claims in his Complaint that the consent he granted to Woodward was solely for a book, and was solely for a single book; and that he did not grant any consent for the sound recordings to be released, or for full transcripts to be released. There is some limited evidence in the complaint to support this assertion: at one point, Trump says twice “For the book only, right? Only for the book.” [Complaint ¶ 44] (In context, this appears to be in contrast to newspaper articles.) And at one point, Woodward says: “This again is for the book to come out before the Election.” [Complaint ¶ 45] Moreover, although it is customary for journalists to quote from on-the-record interviews with public figures in their publications, to my knowledge it is not customary for journalists to release full transcripts and sound recordings of those interviews for commercial purposes. “On the record” is undoubtedly sufficient for a jury to conclude that an implied license exists; but the evidence in the Complaint seems to be sufficient to raise a triable issue of fact concerning the scope of that implied license.
There is case law suggesting that even express licenses should be construed narrowly. In Random House, Inc. v. Rosetta Books, LLC, 150 F. Supp. 2d 613 (S.D.N.Y. 2011), aff’d, 283 F.3d 490 (2d Cir. 2002), Random House held exclusive rights to publish in eight copyrighted works “in book form.” When the authors licensed Rosetta to sell eBooks of those works, Random House sought a preliminary injunction seeking to prevent Rosetta from doing so. The district court held that “the right to ‘print, publish and sell the work[s] in book form’ in the contracts at issue does not include the right to publish the works in the format that has come to be known as the ‘ebook.'” On appeal, “without expressing any view as to the ultimate merits of the case, the [Second Circuit] conclude[d] that the district court did not abuse its discretion in denying Random House’s motion for a preliminary injunction.” This precedent would suggest that Trump’s express consent “for the book only” should be read narrowly. Given contemporary publishing practices, a license to use quotes from the interviews in the book Rage should be extended to publication of Rage as an ebook; but it is a stretch to further imply that Woodward had a license to publish sound recordings and transcripts of the full interviews.
Trump also complains that Woodward and Simon & Schuster “unlawfully manipulated” the recordings by “selectively omitting” portions of the interviews. This allegation appears to be a red herring. The sole example that Trump gives does not appear to be “manipulation” or to quote Trump unfairly; it simply omits a long side exchange in which a third party, Hogan Gidley (Deputy Press Secretary), participates in the conversation. [Complaint ¶ 53] There is no claim of defamation in the Complaint. The sole purpose of this allegation seems to be to support a supplemental claim under the Florida Deceptive and Unfair Trade Practices Act. But the U.S. Supreme Court has made it clear that public officials and other public figures cannot avoid the Constitutional limitations on defamation claims by pleading different state-law causes of action, such as intentional infliction of emotional distress. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Thus, in the absence of any allegations that the edits were defamatory and were made with the requisite “actual malice” (with knowledge that the published statements were false, or in reckless disregard of their truth of falsity), I would expect this supplemental claim to be dismissed.
Issue 6: Assuming Woodward published copyrighted material without Trump’s authorization, was he permitted to do so, either as a fair use, or by the First Amendment?
Section 107 of the Copyright Act simply says that “the fair use of a copyrighted work … is not an infringement of copyright.” It gives six examples of uses that are more likely to qualify as fair (criticism, comment, news reporting, teaching, scholarship, or research), and it lists four nonexclusive factors for courts to consider in deciding whether the use is fair.
Factor One: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Here, there is no doubt that Simon & Schuster had a commercial purpose in releasing the recorded interviews. They may also have had an educational purpose: news reporting is one of the favored purposes, and the recordings certainly have value for future scholarship and research. But these motivations cannot be characterized as a nonprofit educational purpose.
The most important consideration under the first factor is “whether and to what extent the new work is ‘transformative,’” defined by the Supreme Court as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). This could be trouble for the defendants. Books like Woodward’s Rage clearly qualify as transformative: they combine quotations from on-the-record interviews with substantial additional news reporting, comment, and sometimes criticism. But releasing full sound recordings of interviews for sale is far less transformative than standard journalism. The only “transformation” that has occurred is that the recordings have been lightly edited, so perhaps there is some minimal originality in selection. Moreover, there is no evidence that Trump himself intended to capitalize on the sound recordings, so publication does accomplish a different and important public purpose of giving the public a full picture of the former President and of the evidence supporting the quotes in Woodward’s book. But to the extent the interviews are considered copyrightable works of authorship, it clearly “supersedes the objects of the original creation” to publish them in full without the consent of the alleged author.
Factor two: the nature of the copyrighted work. Here, two sub-factors are typically considered. First, facts cannot be protected by copyright; so use of material that is primarily factual is more likely to be a fair use than material that is fictional and/or creative. Defendants may argue that Trump’s own words are facts, and are the best evidence of his thoughts. But the Supreme Court has already held that quoting from the memoirs of former President Ford before the official publication of those memoirs was not a fair use. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985). It specifically held that the right of first publication ordinarily should outweigh the need to “make news” by publishing excerpts in advance of their official publication. Harper & Row can be distinguished because here, Trump had no plans to release the interviews himself. Indeed, he would have been unable to do so, because the recordings were in Woodward’s possession. Thus, publishing the sound recordings adds to the public record in a way that “scooping” former President Ford’s memoirs did not.
Second, both Harper & Row and a series of cases that followed in the Second Circuit essentially held that there was a strong presumption that publication of previously unpublished material without permission was not a fair use. In response, Congress added a sentence to section 107, which reads: “The fact that a work is [previously] unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” This is particularly true when the copyright owner has an interest in supressing the unpublished material rather than publishing it himself. But Trump is clearly more interested in earning money from the publication of the sound recordings than he is in suppressing them; and both authors and voice talent ordinarily are entitled to be paid when audiobooks are released to the public. On balance, one must predict that the second factor will strongly weigh in Trump’s favor.
Factor three: the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Simon & Schuster published essentially the entire copyrighted work(s), with only minimal edits. Both quantitatively and qualitatively, virtually all of the copyrightable expression (and certainly the most important parts of the copyrightable expression) in the book was used. This factor is not determinative, but it weighs heavily against fair use.
Factor four: the effect of the use upon the potential market for or value of the copyrighted work. Here, Simon & Schuster’s publication essentially exhausted both the actual and potential market for reproductions and transcripts of the recordings. Anyone who wants to purchase them can do so at a reasonable price. If Trump wanted to publish his interview responses himself, he would undoubtedly find that his market for doing so has been saturated. The vast majority of listeners and readers who may be interested have had their interest satisfied by the Simon & Schuster versions.
The strongest argument in favor of fair use is that copyright likely played no part whatsoever in Trump’s decision to participate in creating the copyrighted works in the first place. Trump wanted the attention and publicity that he would get from Woodward’s book, and he wanted to make sure his version of events was reflected in the public record. He likely had no intention of making money by publishing the recordings themselves, or transcripts of them. But Trump is correct that a potential market for the interview recordings existed, as proven by their successful publication. He is simply being an opportunist in seeking some of the profits that have been and will be generated by that successful publication. But to the extent that publication goes beyond the scope of his implied consent, and absent a section 105 defense, there seems to be no good reason in copyright doctrine why he should not be able to share in those profits. Trump may lose on other grounds, but under Harper & Row, I consider it extremely unlikely that a court would hold that the publication of the interview recordings was a “fair use” of his copyrighted material.
The First Amendment to the Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” Certainly any attempt to interfere with the publication of the interview recordings, by injunction or other governmental action, would constitute an improper and unconstitutional prior restraint. But the Copyright Clause of the Constitution is contemporaneous with the First Amendment, which “indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.” [Eldred v. Ashcroft, 537 U.S. 186, 219 (2003)] As a result, the Supreme Court has repeatedly held that there is no independent First Amendment defense to copyright infringement, because together the fair use doctrine and the idea-expression distinction satisfy the requirements of the First Amendment. [Harper & Row, 471 U.S. at 556-58, 560; Eldred, 537 U.S. at 219-21; Golan v. Holder, 565 U.S. 302, 328-29 (2012)]
If ever there is a case to depart from that principle, perhaps it is this one. Surely there is a strong public interest in publication of recordings of interviews granted by a sitting President, even if those interviews would otherwise be considered copyrightable material. It is important to note, however, that the Complaint does not expressly seek an injunction, which would raise serious, probably insurmountable, First Amendment issues. (The Complaint does claim that Trump has “no adequate remedy at law,” and it asks the court to “[a]ward such other and further relief as the Court deems just, proper, and equitable” [Complaint ¶ 66(g)], which might provide a basis for seeking an injunction at a later time; but there is no demand for an injunction in the Complaint as filed.) Instead, Trump is simply seeking to share in the profits generated by exploitation of the copyrighted work. While an injunction against publication would be a prior restraint and would likely be unconstitutional, I believe the Supreme Court would hold that an accounting of profits would be a proper remedy that would pass Constitutional muster.
Conclusion
Trump’s lawsuit against Woodward and Simon & Schuster should be dismissed on procedural grounds, for failure to comply with the registration requirement. Should Trump decide to register his alleged copyrights, the court will have to address whether the interviews were given as part of Trump’s official duties as President. If so, his interview responses are in the public domain and can be freely published without any royalties to Trump. (That would still leave one interview from 2016, but the potential monetary liability would be greatly reduced.)
But if Trump can clear that hurdle, then his claim to ownership of copyright in his interview responses would likely be upheld. In my opinion, the sound recordings and literary works in those interviews should be considered joint works, so that Woodward is not liable for copyright infringement, but he might owe Trump a share of the profits earned from sale of copies of the works. But the case law that requires mutual “intent” to be joint authors would have to be modified to reach that result. Under existing law, the interview questions and responses would likely be considered separate works. That would leave a triable issue of fact over the scope of the implied license that Trump granted to Woodward, and whether it authorized publication of nearly-complete versions of the sound recordings and transcripts.
Professional journalists routinely record their interviews with public figures in order to ensure accuracy and to fend off any claims that the subjects were misquoted. In most cases, selling copies of those recordings would not be commercially viable, and an implied license is sufficient to avoid any liability for copyright infringement for quoting from the interviews. In the few cases in which selling copies of the interview recordings themselves might be valuable, copyright law suggests that doing so without express consent might very well be infringing, subject only to the fair use doctrine and the First Amendment.
If Trump has the patience to register his copyright claim and pursue this lawsuit, it may set an important precedent concerning the scope of consent that a public official or public figure grants to a journalist when sitting for an on-the-record interview. Regardless, the implications of the lawsuit for professional journalists are clear: to avoid (or dismiss) such lawsuits in the future, they should obtain express written or recorded permission from their interview subjects to publish the interviews, in whole or in part.