Who "Owns" an Interview?

Writers and reporters conduct countless thousands of interviews every day. You might therefore think that it would be well-settled who owns the copyright in the transcriptions or recordings of those interviews, but there is a surprising disparity of opinion on the issue.

It is clear that most interviews are copyright-protected.  As described in this earlier post, an expressive work is subject to copyright protection the moment that it is "fixed in any tangible medium of expression." An interview is "fixed" the instant it is, for example, tape recorded, videotaped, or set down by the interviewer in nearly verbatim notes. (There is the additional requirement that the fixation must be with the "authority" of the author, so a conversation surreptitiously recorded by one participant may not give rise to a copyrighted fixation.)


But who is the copyright owner of the resulting give and take of questions and answers? The interviewer who formulates the questions? (That's basically where the Taggart v. WMAQ case came out, as summarized by the Henderson & Sturm law firm here.) The interviewee who provides the answers, which typically form the core of what readers are really looking to read in interviews? (That seems to be what Suid v. Newsweek implies.)  Or do the interviewee and interviewer create a kind of compilation in which each has an ownership interest in his or her separate contribution? (That appears to be the position taken in Quinto v. Legal Times and in Section 317 of the Compendium II of the Copyright Office Practices.)  Or is the interview a "joint work" where the interviewer and interviewee both have a copyright interest in both the questions and the answers. (That's the default assumption of leading copyright scholars William Patry and Paul Goldstein.)  And, when a work is recorded, does some third party, such as a videographer own the recording? (Very often, yes; see Taggart again.)  Finally, when the interview is conducted as part of the interviewer's or interviewee's employment, the employer(S) may own some or all of the interview as a work for hire.


All of this is seldom of any great practical consequence to writers. In the absence of some agreement to the contrary, if the interviewee knew he was being interviewed, a court would virtually always conclude that, at the very least, the interviewee had implicitly granted the interviewer a non-exclusive license to publish the resulting interview. If someone were to copy the interview, without permission, beyond the amount permitted by fair use, the interviewer and/or the interviewee would have a claim against the copier for infringement. (But see Suid.) And, if you are looking to obtain permission to quote from an interview (again, if you need to use more than fair use allows), then it usually makes sense to contact the interviewer, his or her publisher, or the media entity that employed the interviewer. I do not know of any instances where a interviewee has filed suit contending that the interviewer did not have authority to grant permission to quote from a published interview. (If any reader knows of such a case, please let me know.)


When a problem arises, it is generally not because of a dispute between interviewer and interviewee over copyright ownership, but because the interviewee purports to have placed some express restrictions on how the interview may be used. For example, in Taggart, the defendant television station videotaped a prison interview with a convicted sex offender on the subject of lax regulation at summer camps. The interviewee/plaintiff then claimed that he had requested that the tape not be used in any way in a broadcast.  Fortunately for WMAQ, the court held that the interviewee had no copyright interest in his words, so there was no need to determine whether such a promise was made.

But interviewers should be aware that, if they make explicit promises to interviewees (e.g., with respect to how they will be portrayed or how the interviews will be used), the interviewers -- and/or their employers -- may be held liable for breach of contract (or on a related legal theory, known as promissory estoppel) if those promises are not kept.  That is one of the lessons of Cohen v. Cowles Media, in which a newspaper was ultimately held liable for failure to live up to a promise not to disclose the identity of a confidential news source.

So, writers, you almost certainly own some kind of copyright interest in the interviews you conduct -- unless it is a work for hire for an employer or contracting party.  But ownership of the copyright is not the end of the story in terms of your control over how the interview is used.

In terms of best practices: it's wise, when taping your interviews, to get a statement from your interviewee on the tape that the interviewee is okay with your taping his or her words.  If you and the interviewee have some special understanding with regard to copyright ownership (or other matters relating to the interview), it's best to memorialize that understanding beforehand on tape or in writing (if only in an exchange of emails).  If you have promised something to your interviewee (e.g., the opportunity to review quotations before publication, or that something the interviewee said will be "off the record"), make sure you abide by the promise.

In later posts, I will return to three special problems related to interviews:  the risks of inaccurate quotation; best practices for going on and off the record; and the risks of interviewing someone who has signed a confidentiality agreement, aka the Jeffrey Wigand problem.

Postscript:  Bob Tarantino of the Heenan Blaikie firm in Toronto has written a good piece on this issue under Canadian law and reaches a somewhat different (or, at least, more definite) conclusion than the U.S. cases provide.