Will Donald Trump’s lawsuit against Bob Woodward and publisher Simon & Schuster finally resolve the question of who owns the copyright over interviews? While the complaint has other challenges, it calls out a surprisingly muddled and unresolved area of copyright law.
One might assume that the copyright ownership of interviews is a settled question. But two major questions have never been resolved:
- Are interviewee’s responses to an interviewer’s questions copyrightable?
- If they are, then who owns that copyright?
C-IP2 2022-2023 Edison Fellow Mary Catherine Amerine presciently identified and analyzed these issues in a 2017 article in the Marquette Intellectual Property Law Review. We relied on her article and current expertise in producing this blog post.
Courts were considering the first question as early as the 1960s, when the estate of Ernest Hemingway claimed that Papa Hemingway, a book that included lengthy quotes from conversations between Hemingway and an interviewer, infringed the estate’s copyright over the interviews themselves. The court ruled on an implied license theory and thus dodged the copyrightability of Hemingway’s conversational statement as captured in an audio recording. In dicta, the court speculated that an interviewee would need to make some clear statement bracketing parts of their extemporaneous responses to an interviewer’s questions “to mark off the utterance . . . from the ordinary stream of speech, . . . to adopt it as a unique statement and that he wished to exercise control over its publication.”
A decade later, a different court employed different reasoning to rule against Jerry Falwell’s copyright infringement claims for republication of interviews in Penthouse Magazine. Whereas the Hemingway dicta suggests that copyrightability turns on an objective manifestation by the interviewee that a particular oral statement has the requisite authorial intent and thus is not mere extemporizing, the Falwell holding turns on whether the content of the particular oral statement is “concrete” enough to indicate authorial intent. This holding then curiously (albeit perhaps unintentionally) imports patent law’s exclusion of “abstract ideas” from patent eligibility into copyright law: “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 . . . .”
Courts have followed this reasoning ever since, distinguishing off-the-cuff extemporizing typical of unrehearsed oral responses to media questions from the sort of carefully planned oral statements of executives of publicly traded companies on analysts’ earnings calls. At the same time, some courts have upheld copyright in the interviewer for interview quotes as a compilation (which avoids ownership of individual quotations).
While the exact contours of whether there is copyright in any particular interview source material are still not clear, the question of who holds that copyright, should it exist, is even less certain. Trump’s Complaint requests a declaratory judgment for his ownership of the entirety of the interview’s sound recordings, audiobook, and all derivative works, or, in the alternative, “copyright in his responses . . . . ” Trump’s ownership of the entire copyright in the interviews would be unprecedented; no court has held that an interviewee could own the copyright over an entire interview. But the question of ownership of the copyright to an interview—in whole or in part—turns on three other questions:
- Can the interviewer seek to claim copyright of all contents of the interview on the theory that they directed and recorded the interview?
- Can neither party own copyright to the other’s statements because they did not create or make them, and hence each owns only their own contribution (“divided copyright”)?
- Should the entirety be viewed as a work of joint authorship by the interviewer and interviewee?
The court in Suid v. Newsweek Magazine, addressing a reporter’s attempt to claim the entirety of copyright in interviews he conducted, adopted “B” and divided copyright: “The author of a factual work may not, without an assignment of copyright, claim copyright in statements made by others and reported in the work because the author may not claim originality as to those statements.” By contrast, the court in Foundation for Lost Boys v. Alcon Entertainment, LLC was inclined to adopt “C” when it held that interviewee plaintiffs had pled facts sufficient to support a finding of joint authorship with interviewer defendants. Ruling on defendants’ motion to dismiss, the court rejected the argument that plaintiffs’ interview responses were not copyrightable, as telling “personal stories in response to questions designed to elicit material” likely rose to the required level of creativity. Further, the court held that “[T]he interplays between prompts and responses in the Interviews necessarily merged the respective contributions of the [Plaintiffs and interviewers] into inseparable parts of a whole,” even though the refugees had not specifically asserted that they had intended to create a joint work. However, the case settled, leaving the interview copyright ownership question unanswered.
A final wrinkle in interview copyright cases arises when the party asserting copyright does not have physical custody of the interview materials and so cannot register the copyright with the U.S Copyright Office. Parties in similar circumstances have attempted to skirt this issue by positioning their claims as declaratory judgment actions rather than directly claiming infringement, as copyright registration is a requirement for filing a copyright infringement lawsuit. These declaratory judgment actions have generally requested that the court grant an injunction requiring defendants to provide copies of the work in question to allow the plaintiffs to register their copyright. So far, courts have been divided on whether this strategy is a permissible circumvention of the copyright registration requirement.
In Johnson v. Magnolia Pictures LLC, the court granted a motion to dismiss by a producer who created a movie about comedian Gilda Radner based on recorded interviews found in an attic. The court ruled that a declaratory judgment is not an independent cause of action that could survive without the underlying copyright infringement claim, which was itself dismissed for lack of copyright registration. Similarly, in Whistleblower Productions, LLC v. St8cked Media LLC, the court dismissed a copyright infringement case because even as plaintiff claiming ownership of the interview footage used to make a documentary, they did not possess the footage and hence had been unable to register the copyrights. But in Lost Boys, the Sudanese refugees case, the court stated that if the refugees proved facts sufficient to show copyright infringement in a trial on the merits, then they would be entitled to an injunction compelling defendants to turn over the interview materials needed for the plaintiffs to register the copyrights.
Trump’s lawsuit faces a similar registration challenge: the Complaint conspicuously fails to plead that Trump has a copyright registration. According to Trump’s attorney, he was unable to register the copyright because he does not have the interview tapes. Thus, similar to the cases above, he does not plead copyright infringement directly, but instead seeks a declaratory judgment that he owns the interview copyright, in whole or in part. However, distinct from the above cases, Trump does not currently seek an injunction to obtain the interview materials copyright registration. Further, because Trump has filed in the U.S. District Court for the Northern District of Florida, where no local or circuit decisions bind the court on these issues, it is unclear whether the court will allow the suit to proceed as an action for declaratory judgment, or whether the lack of copyright registration will be fatal.
If Trump’s suit survives the likely motion to dismiss for lack of copyright registration, then the court would still need to decide whether to find no copyright, divided copyright, sole copyright owned by either Trump or Woodward (or Simon & Schuster), or joint authorship. Trump has already sought to reject the latter, pleading in the Complaint that “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.” The Lost Boys decision indicates that this lack of intent does not necessarily preclude joint authorship, as interview questions and responses may be “inseparable or interdependent parts” that create a “unitary whole.” However, this is the only case that has directly addressed the possibility of joint authorship of an interview in these circumstances. It remains to be seen whether the court would find this reasoning persuasive or would return to earlier decisions to hold either that interview responses cannot be copyrighted at all, or that interview questions and responses are protected by two separate copyrights owned by the interviewer and interviewee, respectively.
Regardless of the outcome of Trump’s case, this high-profile lawsuit has made it impossible to ignore the unsettled nature of a copyright question that has been long overlooked.
 Trump v. Simon & Schuster, Inc., Case No. 3:23-cv-02333-RV-ZCB (Dkt. 1, Complaint, Jan. 30, 2023).
 21 Marq. Intell. Prop. Rev. 159 (2017) available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2878800. Drafts of the article won both AIPLA’s Robert C. Watson National Writing Award and the Virginia State Bar Intellectual Property Section’s Student Writing Competition. Amerine is currently an associate at Shearman & Sterling.
 Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250 (N.Y. 1968). While this and the Falwell case discussed below were brought under common-law copyright, the courts’ analyses are still relevant to the copyright of interviews under the Copyright Act of 1976.
 Id. at 256.
 Falwell v. Penthouse Intern., Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).
 “There is nothing concrete which distinguishes his particular expression of his ideas from the ordinary.” Id. at 1208.
 Id. Notwithstanding, the court also relied in part on the reasoning of the Hemingway dicta: “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.” Id.
 Compare Taggart v. WMAQ Channel 5 Chicago, No. 00-4205-GPM, 2000 WL 1923322 at *5 (S.D.
Ill. Oct. 30, 2000) (“comments during the interview were unprepared and spontaneous responses,” and therefore “simply do not rise to the level of a literary or intellectual creation enjoys the protection of the copyright law.”) with Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 808 F. Supp. 2d 634, 638 (S.D.N.Y. 2011) (oral statements of executives “possess the requisite creativity to qualify for copyright protection.”).
 Quinto v. Legal Times of Washington, Inc., 506 F. Supp. 554 (D.D.C. 1981).
 The question of sound recordings adds a layer of complexity beyond the scope of this post. It will be addressed in a subsequent post.
 Trump v. Simon & Schuster, supra Note 1 at ¶¶ 64-65.
 Suid v. Newsweek Mag., 503 F. Supp. 146, 147 (D.D.C. 1980).
 Foundation for Lost Boys v. Alcon Ent., LLC, No. 1:15-CV-00509-LMM, 2016 WL 4394486 at *2-4 (N.D. Georgia Mar. 22, 2016).
 Johnson v. Magnolia Pictures LLC, No. 18 CV 9337, 2019 WL 4412483, at * 1-2 (S.D.N.Y. Sept. 16, 2019) (reconsideration denied, Johnson v. Magnolia Pictures LLC, No. 18 CV 9337, 2019 WL 5569610 (Oct. 29, 2019). The interviews formed the basis of the film Love, Gilda.
 Whistleblower Prods., LLC v. St8cked Media LLC, No. 18-CV-5258, 2019 WL 3082482 (E.D.N.Y. July 15, 2019)
 Found. for Lost Boys and Girls of Sudan, Inc. et al v. Alcon Ent. at *9.
 Kyle Jahner, Trump’s Woodward Lawsuit Called Flawed, Intriguing by IP Lawyers, Bloomberg News, Feb. 3, 2023, available at https://news.bloomberglaw.com/ip-law/trumps-woodward-lawsuit-called-flawed-intriguing-by-ip-lawyers#:~:text=Trump’s%20Woodward%20Lawsuit%20Called%20Flawed%2C%20Intriguing%20by%20IP%20Lawyers,-By%20Kyle%20Jahner&text=Former%20President%20Donald%20Trump’s%20copyright,property%20rights%20over%20recorded%20interviews.
 Trump v. Simon & Schuster, supra Note 1 at ¶ 47.
 Found. for Lost Boys and Girls of Sudan, Inc. et al v. Alcon Ent. at *8.
 A fourth alternative, not yet adopted by courts but proposed by Amerine in her article, is that the journalist own copyright over the entire interview as the “mastermind” who controls the project and can be considered the “author” under the Ninth Circuit’s authorship analysis in Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000). Supra note 2 at 182-184.