Former President Trump recently filed a lawsuit against journalist Bob Woodward and Woodward’s publisher, Simon & Schuster, over the release of audio recordings from their interviews for Woodward’s audio version of his book The Trump Tapes. Trump is alleging that he owns the copyright to the interview recordings or at least his answers to Woodward’s questions, and that he had only given Woodward permission to include his answers in the written book. Woodward is arguing that he is the sole copyright owner to the interview. This begs the question, who owns the copyright in an interview
Generally, under U.S. copyright law, the person who creates the work is considered the author of the work. The author is usually the person who owns the exclusive rights and protections that come with a copyright. An exception to this general rule is if the creative work is a work made for hire, where an employee creates copyrightable materials within the scope of their employment or where one party has hired another pursuant to a written agreement to create the work, but the hiring party is the copyright owner and author for all legal purposes. Here, the work made for hire exception does not apply, as neither Woodward nor Trump were hired by a third party to complete the interview and there is no work for hire agreement in place.
The confusion with the Trump and Woodward interviews is determining who is the author, and in turn, the copyright holder – Trump, Woodward, or both?
Given that Woodward arranged for the interviews and asked the questions and the answers taken out of context would be of limited value, it would be reasonable to assume that Woodward, as the interviewer, is the author for copyright purposes. However, since both Trump and Woodward participated in the interview and helped create the interview, it would not be out of the question for a court to decide they are joint authors in the interview. If the interview (and future interviews) are determined to have multiple authors, this would be extremely lucrative for interviewees, as the default rules require multiple authors to have even ownership in the creative work. So, if Woodward and Trump were considered authors of the interview, then each would own 50% of the interview and the copyright for it.
However, one important thing to note is that the default rule of even ownership can be overcome if a written collaboration agreement is in place. A collaboration agreement is used between co-creators of a creative work to determine factors such as who owns the copyrighted work and how royalties would be split. If the courts determine that interviews are created by both the interviewer and interviewee, collaborative agreements will be necessary in the future so journalists can avoid the conundrum that Woodward is currently in.
Interviews can be an essential tool to help create important creative works. However, it is critical to make sure that you have the correct agreements and copyright registrations in place so you can own the copyright interests in the interview and avoid liability. Consult an experienced attorney to ensure your next interview has the proper legal protections.