Who Owns the Copyright in an Interview?

by John Aquino on 05/11/12

I hadn’t really intended for the latest blogs/articles to be answers to the questions, who owns the copyright in this and who owns the copyright in that? But last night I was reading the (London) Times Literary Supplement (May 4, 2012), and the editors there in an opinion piece described this recent situation.

Nigel Rodenhurst, a graduate student at Anerystwyth University, conducted an interview with the author Paul Auster as part of his doctoral thesis. The interview went so well that Rodenhurst wanted to write an article on Auster, but the university told him he had to show it to Auster first. Rodenhurst typed it up in a Q&A format and submitted it to the journal College English, which also said it would like Auster’s “go ahead.” But when contacted, Auster withheld his consent.

TLS writes that Rodenhurst did not need Auster’s permission. Citing a precedent set by the Paris Review, TLD states that it is the interviewer who holds the copyright in an interview. The Paris Review interview with Auster in a book collection of interviews from that publication notes that it was reprinted with the permission of the interviewer, Michael Wood, not Auster.

Well, the situation may not be as simple as the TLS claims. The interviewer or the publication if it is a work for hire could claim ownership of the questions and the presentation, and the interviewee presumably is giving the interviewer and publication a license to use the words in the publication by consenting to the interview. But who owns the quoted material from the interviewee?

Legal precedent in the United States appears to be divided, with some cases suggesting that the interviewer holds the copyright (e.g. Taggart v. WMAQ, Channel 5, 57 U.S.P.Q.2d 1083 (S.D. Ill. 2000), and others indicating it is the interviewee (e.g. Suid v. Newsweek, 503 F. Supp. 146 (D.D.C. 1980)). Another case in District of Columbia federal district court--Quinto v. Legal Times, 506 F. Supp. 554 (D.D.C. 1981))--posits that both the interviewer and the interviewee have ownership interests in their separate contributions.

The 1984 Compendium II of the Copyright Office Practices appears to side with the idea of both the interviewer and the interviewee having ownership rights. It states, “A work consisting of an interview often contains copyrightable authorship by the person interviewed and the interviewer. Each has the right to claim copyright in his or her own expression in the absence of a valid agreement to the contrary. Where an application for such a work names only the interviewee or the interviewer as author and claimant, and where the nature of authorship is described as ‘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. In any case where the extent of the claim is not clear, the Copyright Office must communicate with the applicant for clarification.”

And so depending who your client is, you have precedent on your side.

When a case on the issue came to a Canadian court, it grappled with both the Canadian and the U.S. precedents. In Hagers v. ECW Press Ltd.,85 C.P.R. (3d) 289 (1998),  Michael Holmes (a pseudonym for Dallas Williams) had written  a biography of Shania Twain in which he had plundered existing interviews with Twain and ended up using a third of plaintiff Barbara Hager’s interview with the singer in Hagers’ book Honour Song: A Tribute. Holmes did not cite Hagers, and it could have been understood that he had interviewed Twain himself.

Hagers sued for copyright infringement, and Holmes in his defense relied on the 1997 Canadian decision in Tele-Direct Inc. v. American Business Information, 76 C.P.R. (3d) 296 (F.C.A. 1997), which had concluded that compilations of data must embody originality and creativity in order to be copyrighted. Holmes was basically arguing that Hagers could not claim to have a copyright in the quoted material because the quoted material did not originate with her but with Twain.

The Canadian court rejected Holmes argument, stating that Tele-Direct Inc. ruling was particular to its facts. But the issue of the originality of quoted material goes to the heart of the copyright law across nations, which is that to carry copyright protection a work must be original to the author claiming copyright.

In addition to different legal precedents, the interviewee may have provided some contractual limitations to the license to use the quoted material. And there are conceivably rights of publicity arguments an interviewee may offer in response to what he or she regards as misuse of the words that were spoken.

And so, it may be a logical assumption that the interviewer or the publication owns the copyright, but, depending on the circumstances, there could be arguments to the contrary.

Copyright 2012 by John T. Aquino. This article does not constitute a legal opinion and is presented solely for educational purposes.