“Headlines” and “titles” are related, sometimes interchangeable, items appearing atop news stories. But, in this space, headlines are usually a source of inspiration (so we can write about intellectual property issues that may interest more than just IP attorneys), and titles a bit of fun (so we can draw in those looking for a bit of lightness amid more serious legal analysis).
Today is no different, as the headlines are “Trump sues Bob Woodward for releasing audio of their interviews without permission” and “Bob Woodward seeks to end Donald Trump’s lawsuit over audiobook,” each of which inspires the question of why interview subjects, the real draw (or the “get” as it were), do not have clearly delineated intellectual property rights in the publishable interview. The titling fun comes from understanding that the language of the “good get” has, “[m]ost recently, …come to mean ‘the acquisition of an endorsement’ or ‘the act of securing an engagement for an appearance (as for a speech or interview),” but that word “get” can also signify divorce for some. That then plays off the rest of the title’s allusions to separating “subjects” from the “predicates” of copyright ownership, themselves words connoting the foundational elements of both “any complete sentence” and at times a court’s jurisdiction over infringement matters. They say that good writing, like good magic, loses its mystery if explained. But, if the Greatest felt honesty demanded explanations sometimes, who am I to quibble with such a fine philosophy (or imply by withholding explanation that my writing is good)? But enough on this title…
…and back to these headlines.
On December 6, 2023, Bob Woodward and other defendants moved to dismiss claims brought against them by former President Donald J. Trump Woodward’s publication, The Trump Tapes: Bob Woodward’s Twenty Interviews with President Donald Trump, an audio-book also released in print. The nine-count complaint originally filed on Monday, January 30, 2023, by the United States District Court for the Northern District of Florida, had asserted myriad legal claims, and sought various relief, all around a central assertion that Woodward had released without the consent audio recordings of numerous interviews that Woodward conducted of former President Trump. The complaint had “accuse[d] Woodward of the ‘systematic usurpation, manipulation, and exploitation of audio’ in violation of Trump’s contractual rights and copyright interests,” according to NPR. Trump twice amended the complaint, and the Florida court transferred the case to the Southern District of New York. Before the second amendment, President Trump received a copyright registration covering the work, despite an early registration being recorded in Woodward’s favor. The moving, response, and reply papers were all filed in the same December 6-7, 2023 time frame by lawyers for Woodward and the former President, respectively.
What did those papers say?
The motion to dismiss, as linked by Law 360 [subscription may be necessary; also available through PACER at Docket #73 in matter 23-cv-06883-PGG] asserted that the “government works” or “government edicts” doctrine barred the copyright claims, that President Trump did not meet the definition of “joint author” or of the whole “author” of the responses to the interviewer’s questions, and that state law contract or tort claims were pre-empted or baseless.
The opposition, as also linked by Law 360 [subscription may be necessary; also available through PACER at Docket #77] argued that the government works doctrine did not apply because the interviews were not presidential duties nor were the interview recordings presidential records, that President Trump was the dominant author of the responsive elements of the interview, and that the state claims were well-pled and not preempted.
The Woodward reply focused on certain harmful admissions in earlier Trump court submissions that could spell trouble for the former President’s claims. [The reply brief is available through PACER as Dkt. #75]
Even before these motion papers were filed, legal experts found the claims both flawed and intriguing, and we do too.
So, question one is whether the “government works” doctrine applies. To answer that, it might be helpful to know what the doctrine is and where it comes from. As found in the Woodward Motion Brief:
“[C]opyright protection…is not available for any work of the United States Government,” which is defined as any “work prepared by [1] an officer or employee of the United States Government [2] as part of that person’s official duties.” 17 U.S.C. §§101, 105. “The basic premise of [S]ection 105…[is] that works produced for the U.S. Government by its officers and employees should not be subject to copyright” and fall “in the public domain.” H.R. Rep. No. 94-1476 at 58 (1976); see also Georgia v. Public.Resource.Org, 140 S. Ct. 1498, 1509-10 (2020). The government works principle is central to our democracy: the work product of government representatives—including the president—is common property that exists to benefit the public, not an opportunity for exclusive, private gain. President Trump’s claims run head-on into this doctrine.
[Woodward Motion Brief at 10].
While the former President’s lawyers responded by emphasizing that the interviews were not part of government works because they were not part of Mr. Trump’s official duties (or that questions of fact existed that made deciding that question at this stage of the litigation inappropriate), their most pointed assertion might be the contradiction between Woodward’s assertions and his conclusions: “Woodward argues the Work, including the Interviews, are a work of government copyright, and belongs to the ‘People’ and the ‘public domain’ but he has unabashedly asserted sole copyright to the Work and asserted his own copyright.” Trump Responding Brief at 5.
Though Woodward’s motion brief makes a fairly compelling argument that interviews are a necessary party of the duties of a President as a politician wishing to retain office or further a governing agenda, it is less convincing an argument that it is a necessary duty of President as an officeholder, where the only stated obligation related to keeping the American people informed of the President’s views is an indirect one, namely to, “from time to time[,] give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” US Const., Art. II, Section 3. Though some questions of fact surrounding the Trump/Woodward conversations may have seemed to exist as to whether such interviews were or were not within the duties of the president’s office, it is arguable that:
Plaintiff [Trump]’s own words defeat any argument to the contrary: “more than any other public official, the President is expected to respond to questions from the media that affect his ability to maintain the trust of the American people and effectively carry out his official duties…. [S]peaking to the press and communicating with the public is clearly conduct ‘of the kind [a President] is employed to perform.’” Dkt. 73 (“MTD”), [and Dkt. 74-5,] Ex. D, 8, 19…As the D.C. Circuit recently recognized, and President Trump previously confirmed, the ”bully pulpit” is “an everyday tool of the presidency.”
[Woodward Reply Brief at 1, 3 (quoting brief the former President had filed in case with E. Jean Carroll, wherein his counsel asserted the quoted statement on his behalf)].
Still, it seems strange that Woodward, a reporter, would argue that the interviews are somehow government works. It is strange because that would mean that the unpublished portions would also be government works available for public use. It would also seem that that designation would prohibit Woodward from private ownership of the copyright in the full work, a concept that Woodward would surely resist and with which his own copyright registrations are inconsistent.
Interestingly, as an aside (since this is an International Lawyers Network IP Group Publication that “brings together IP practitioners from around the world to share their experience and expertise on the latest trends in intellectual property law”), the government works doctrine is an American approach very different than that taken in other countries in the English common law tradition that “provide[] Crown copyright protection for government works,” Heiko Richter notes (at page 7) in the 2021 article “Copyright Protection of Government-Related Material Before The Courts of the United States and Canada: Considerations of Further Reforms.” Since the first statutory Crown copyright provision in section 18 of the UK Copyright Act of 1911, the scope of the right has been further refined to assure copyright protection to “works ‘by an officer or servant of the Crown in the course of his duties.’” Id. at 19. Thus, in language very similar to that precluding copyright in the United States, the British recognize it. But the debate continues. As Richter further observes, Canada’s acceptance of Crown copyright as a bulwark of “ensuring accuracy and integrity of government documents” should not drive the law to allow “’such an expansive Crown copyright regime that public interest in accessing information is harmed’” because that “would risk ‘impeding the public interest in accessing these works and could compromise the existence of a robust public domain.’” Id. at 23 (quoting the Supreme Court of Canada opinion Keatley v. Teranet, 43 SCC, para. 54 (2019), also concurring opinion, para. 97). Other commentators, such as Vishal Rakheccha, have also sought to reimagine how copyright in Crown copyright jurisdictions might strike the best balance of access, accuracy, and enforcement around government works copyrights in British common law jurisdictions like India.
But, regardless of such international considerations and whether or not interviews were within the scope of presidential duties, the interviews as published may not qualify as such works because they were not “prepared” in the copyright sense by Donald Trump as President, who did not himself fix them in a tangible means of expression. The reporter here, Bob Woodward, argues that he did that by choosing the questions and controlling the recording device. Woodward Motion Brief at 18-23. Woodward’s reply brief also pushes back strongly against the former president’s reliance on the Copyright Office’s Compendium, which says that “the US Copyright Office will assume that the interviewer and the interviewee own the copyright in their respective questions and responses…,” subject to certain exceptions. Woodward Reply Brief at 4ff. With supportive citations, Woodward argues that the Compendium is not a deference-drawing policy articulation, and that copyright office processes are not adjudications with either binding effect or persuasive value. Id.
While that Compendium is not the sort of administrative guidance to which substantial deference is given, it does reflect some Copyright Office thinking potentially troublesome to the Woodward position. Other recent Copyright Office guidance also seems inconsistent with Woodward’s take. For example, the Copyright Office recently said that a human being’s questions, or prompts, from which another intelligence (i.e. an artificial one) creates a work are insufficient to accord the human prompter the status of author: “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user,” as noted (at page 7) in the March 16, 2023 Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence. When a Woodward question prompts a Trump response, it is just that, a response created by Trump, not Woodward, and Woodward does not exercise control over how Trump interprets the questions and forms the answers. When the Copyright Office goes on to note that AI “users do not exercise ultimate creative control over how such systems interpret prompts and generate material” in response (Id.), it expresses a sentiment that sounds a lot like what Bob Woodward said to NPR’s Steve Inskeep about how Donald Trump responds to the prompts of a democratic society or Woodward’s questions concerning such matters: “’It’s so off the tracks, you don’t know what to do with it,’ Woodward says to Inskeep. ‘It’s almost unexplainable. So what do you do as a reporter? You just put it all out there and let the people decide.’” See also NPR Author Interviews, Bob Woodward’s new audiobook features hours of his interviews with ex-President Trump, October 24, 2022. There would seem to be an analogy (unhelpful to Woodward) there to those who take AI-generated content and just put it all out there after tiring of further prompting or growing frustrated with the lack of shaping impact of such prompts on the other’s outputs.
Moreover, the copyright in an extemporaneous original performance, prompted or not, generally resides in the artist, and not the sound engineer or videographer, as Nickey Frankel has noted in writing about copyright in performance or performing arts. And interviews involving Donald Trump have long been likened to performance art, even in periods before his presidency. In the UK, and elsewhere for instance, “[s]ome argue that [such control over one’s own performances] also includes improvisation, so you might even have a performance right if you are filmed having a tantrum in public. And it doesn’t have to be a paid performance to qualify,” as Dr Hayleigh Bosher, Senior Lecturer in Intellectual Property Law at Brunel University London, notes. Similar suggestions have arisen here in the United States, with one commentator suggesting that “copyright’s authorship-as-fixation regime rests on a faulty premise, betrays copyright law’s role in recognizing and rewarding creativity and denies copyright interests to the very individuals who have provided significant, if not the most important, original contributions to works within copyright’s traditional subject matter,” and therefore that commentator “calls for a fundamental reconsideration of the concept of authorship, including the issue of performer copyrights, in order to better align copyright law with its utilitarian goals, the realities of the creative process and broader public policy.” Thus, there are some copyright arguments or policies in play beyond those most immediately considered in the motion papers.
Arguing in part against any future performer-based claim implied in the Trump position, Woodward argues that the interviewee here has no claim to joint authorship since Woodward, as the dominant author, showed no intent to share authorship and therefore there was not the necessary mutual intent. Woodward Motion Brief at 16; Woodward Reply Brief at 7. But, while perhaps ultimately unpersuasive at any trial stage, at the present stage of proceedings it seems the book jacket and write-up as to the print edition at the Simon & Schuster website, viewed in the light most favorable to the non-moving party, could find arguable indicia of such intent in the book (i) being titled The Trump Tapes, (ii) in the reference to “Twenty Interviews with President Donald Trump,” rather than “of” him, (iii) in referencing the inclusion of “all 27 letters between President Trump and North Korean Leader Kim Jong Un,” which Woodward certainly could not be claiming to hold any copyright over, and (iv) in noting that it is the “inside story of Trump’s performance as president—in his own words,” albeit “as he is questioned.” Id. (italics added for emphasis in items (i)-(iii)). Those snippets seem arguably suggestive of an intent to use the former President’s input generously, perhaps more generously than fair use might otherwise allow, and in a manner often unvarnished or unprocessed to the point of being an author’s, or an author-like, contribution. Indeed, that transparency is part of what Woodward intended, and what the book is being sold on. See book’s Simon & Schuster webpage (noting the book is “Read by Donald J. Trump and Bob Woodward,” but startingly linking to another Simon & Schuster page concerning Donald Trump entitled “Donald J. Trump…About The Author” and including “Books by Donald J. Trump,” including–if you can believe it–The Trump Tapes!!!)(emphasis added, including the exclamation points, which I rarely use). There would seem here questions of both law and fact that might have been more directly inserted into the pleadings or motion papers as they complicate the more clearly segmented perspectives on which the Woodward arguments best rest.
The Woodward position gets stronger, however, when one looks to the final published product, whether one engages the audio version by listening or the print version by reading. There, one sees the editing, sequencing, and timing decisions consistent with authorship in Woodward rather than Trump. The Woodward Reply Brief also makes good use of the former president’s various statements disclaiming any intent to create a joint work, and the case law supporting the “dominant author” concept. Woodward Reply at 7-10.
There is also something common-sensical about the notion that presidents should not own their interviews, as that seems structurally inconsistent with the ways in which separation of powers, the First Amendment, the copyright clause, and the emoluments clause must intersect. But even that common-sense instinct gets tempered by Woodward’s agreement that the tapes “would not be used in contemporaneous news articles” (Woodward Brief at 6-7) in any manner. Does that limit Woodward’s First Amendment, freedom of the press arguments? Probably not, as speech and press rights are not for newspapers alone, and what, when, and how to publish or whether to publish at all have always been parts of our First Amendment protections. But those big questions are better suited for a constitutional law blog than this IP one. Thus, I mention them in passing in case others wish to explore them. I also mention them if, despite every possible IP argument or effort here to Monday morning quarterback possible claims or questions of fact like a good blogger should (rather than out of any real commitment to either side), someone else wants to decide that public policy and the Constitution reasonably suggest in this case that a dominant author copyright approach makes the most sense.
Still, on the IP side, one wonders whether non-copyright-based claims, such as under common law or statutory rights of publicity, might have better served the former President. As noted here previously, one incapable of fitting within the definition of “author” might nonetheless have a right of publicity claim where copyright does not work, and using another’s voice for commercial gain is different from making fair use of a transcript of another’s words. See Section 51 of the NY Civil Rights Law (“Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use…) While a newsworthiness defense has been applied to Section 51 claims and like claims in other states, those have not occurred in an audio-book case using a voice to this extent of making the person, if not an author, at least a repeated and consistent co-presenter, sometimes with primary status, and sometimes referenced like or as an author of something. One should note that that is exactly how various book websites refer to the former President, such as Barnes & Noble (“Narrated by Donald J. Trump, Bob Woodward,” interestingly hyperlinking to other books authored by Donald J. Trump), and Amazon (“by Bob Woodward (Author, Reader), Donald J. Trump (Reader)”, suggesting the book is in part “by” Donald Trump but not expressly calling him an “author”), even leaving aside the Simon & Schuster page cited above.
Further, another question referenced but largely unexplored in the filings still looms. That is the issue of whether the notion of the interviews being for “’the book only’” (Woodward Moving Brief at 7), as opposed to “a book” or “books,” allows reliance or estoppel arguments. As Professors Post and Rothman described it (at 106 and fn. 79), that presents “[d]ifficult questions” that can “arise if a copyright holder exercises its right under copyright law to prepare a derivative work by using copyrighted digital material to create a new performance, and the recreated performance then exceeds the uses agreed to by the person whose initial performance was captured with consent.”
As Mary Catherine Amerine observed in her article Wrestling Over Republication Rights: Who Owns The Copyright Of Interviews?, “the law is astonishingly unclear about the copyright ownership of interviews.” Her 2017 article, which was actually cited in the Woodward moving brief, explores several cases in which the interviewer/interviewee copyright contest is explored. As to one, Taggart v. WMAQ Channel 5 Chicago, she notes that the district court found the interviewee had no copyright rights in the interview, but that the analysis was less than sharp:
As the interview was conducted in a question-and-answer format, “although the Defendant interviewer likely contemplated his questions before asking them of the Plaintiff, Plaintiff’s comments during the interview were unprepared and spontaneous responses,” which do “not rise to the level of a literary or intellectual creation that enjoys the protection of the copyright law.”
The opinion does not specify the standard for authorship applied by the court in its analysis, but this statement suggests that the court required some sort of intention and forethought for a statement to be considered a “work of authorship” worthy of copyright protection. However, the concept of “authorship” requiring an intent to create is not found anywhere in the Copyright Act itself, and is not a common-law requirement.
[Amerine, supra, at 165]
Amerine then adds (at 167) that “As the bar for originality is so low, heightening the authorship requirement of the Copyright Act by requiring intent to establish copyrightability is inappropriate and incongruous with the low originality requirement.”
Amerine then discusses later The Swatch Group Management Services Ltd. v. Bloomberg L.P. case as an example of what, in her opinion, is a better balance:
This decision, regarding remarks that the court acknowledges to be “extemporaneous,” does not apply Taggart’s elevated “intent to create” or authorship requirement that the Southern District of Illinois read into the Copyright Act. Instead, the court properly applied the Copyright Act’s low originality bar to find that such comments, although unplanned, were sufficient to create a valid copyright interest.
[Amerine, supra, at 170]
But in the end, she sees inconsistencies among the approaches in Taggart, Swatch, Estate of Hemingway v. Random House, Inc.(common law copyright in oral statements), Quinto v. Legal Times of Washington, Inc. (compilation), and Suid v. Newsweek Magazine(split copyright), and she therefore calls for greater specificity and uniformity of approach. Consequently, her preference for the Swatch approach is part of a broader request for a more definitive ruling from a higher court or courts.
Perhaps the Woodward/Trump case will present the opportunity for greater clarity, although most likely only after some later appeal. For a journalist like Woodward, scoring one interview of Donald Trump is a good get, and scoring repeated access across months of time with a sitting president is essentially a phenomenon unique to Woodward. The question still to be decided is whether the twenty interviews were too much of a good thing and whether the Court will make the law in this area clearer or more confused. If we can come out clearer here, that would be “something gotten or obtained” that is akin to the “return of a difficult shot,” or in other words, a good get.
