Veteran investigative reporter Bob Woodward conducted an audio interview of former President Donald Trump for Woodward’s book, Rage. Woodward later released these recordings as a separate audiobook. Trump claims that Woodward did not have his permission to release these audiotapes as a separate audiobook, and sued Woodard and his publisher for, among other claims, copyright infringement. Does Trump have a claim, or is his copyright claim “trumped up”?
These are the facts according to Trump’s complaint against Woodward and his publisher, Simon and Schuster. Woodward sought and obtained President Trump’s consent to be recorded for a series of interviews with him and repeatedly informed him that such interviews were for the sole purpose of a book. Woodward interviewed Trump, both in person and over the phone, on numerous occasions during 2019 and 2020. The audiobook, The Trump Tapes, is comprised of 20 audio interviews, one with Trump during his presidential campaign in 2016 and the remaining 19 from the interviews conducted during his term as president. In his complaint, Trump states that during the Interviews, he repeatedly stated to Woodward, in the presence
of others, that he was agreeing to be recorded for the sole purpose of Woodward being able to
write a single book.
The complaint notes a December 30, 2019 interview which, according to Trump, exemplifies that the rights granted were limited:
Woodward: On the record for the book, unless you—
Trump: For the book only, right? Only for the book.
Woodward: The book only, yeah, I’m not—
Trump: For the book only, right? So there’s no—
Hogan Gidley, the former White House deputy press secretary, then says: Right. So there’s no stories coming out, okay.
Trump contends that Woodward did not request to expand the scope of a release or furnish a release to use the interview sound recordings for an audiobook or any other derivative work, as is customary in the book publishing and recording industries. Trump alleges that he told Woodward numerous times that the Interviews were to be used by Woodward — and Woodward only — for the sole purpose of accurately quoting President Trump for his forthcoming book Rage, and not for any other purpose, including providing, marketing, or selling the interviews to the public, press, or the media, in any way, shape, or form.
So the best practice would have been for Woodward to get a written release from Trump assigning over any rights Trump may have had in the interview. According to the complaint, that didn’t happen, and according to a press release by Woodward responding to the complaint, that seems to be the case. But the failure of Woodward to obtain a written release doesn’t mean that Trump owns the copyright in the recording.
If Trump did own a copyright interest in the audiobook, his interest would be considered that of a joint author. According to the Copyright Office compendium, The Copyright Act defines a joint work 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.” A work of authorship is considered 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 as ‘inseparable or interdependent parts of a unitary whole.’” The key requirement is the intention, at the time the writing is done, that the parts be absorbed or combined into an integrated unit.
If the audiobook is a joint work, then Trump would own an interest in the audiobook. According to the Copyright compendium, the authors of a joint work jointly owns the copyright in each other’s contribution. In other words, all the authors are treated generally as tenants in common, with each co-owner having an independent right to use or license the use of a work, subject to a duty of accounting to the other co-owners for any profits.
However, there is a chance that Trump may not own an interest in the recordings. There is precedent that an interviewee does not hold any copyright in an interview. In the 1981 case of Falwell v. Penthouse, Reverend Jerry Falwell gave an interview to two journalists who sold the interview to Penthouse magazine. Falwell sued Penthouse for infringement of common law copyright, among other claims. In dismissing Falwell’s copyright claim, the court said that Falwell “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.” And then there is the more recent case of Taggart v. WMAQ Channel 5 Chicago, in which a Chicago television station videotaped a prison interview with a convicted sex offender in connection with a report on the lax regulation of summer camps. Taggart alleged that he had requested that the tape not be used in any manner, and when WMAQ broadcast an excerpt, he sued for copyright infringement and other claims. In ruling on the station’s motion to dismiss, the court held that Taggart did not have a copyright interest in unprepared and spontaneous utterances during an interview and dismissed his copyright claim. The basis of this finding is the Copyright Act’s lack of protection for ideas. While courts have recognized common law protection for the spoken word, according to the Taggart holding, courts have not and cannot recognize a proprietary interest where there is no tangible embodiment of the expression of an idea.
To qualify as an author under the Copyright Act, one must supply more than mere direction or ideas. According to the Supreme Court in Community for Creative Non-Violence v. Reid, “an author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” And based on that, the court found the responses given by Taggart were “not an expression of an idea for the purpose of copyright law.” On a more practical level, the judge noted that the granting of protection for the answers to questions “gathered in the daily task of the news reporter would essentially bring the industry to a halt.”
Woodward and his publisher argue that Trump’s claim is meritless and that it will be vigorously defended. I am not so certain that, at this point in time, we can label Trump’s claim as being completely meritless. It’s not completely clear that the permission Trump granted to Woodward, the permission that serves as the basis of an implied license, extended to the audiobook. And while Trump may have a claim for breach of contract, Trump can’t sue Woodward for copyright infringement even if he did have a copyright interest in the audio tapes; however, it’s questionable whether Trump has any copyright interest in the audio tapes at all.