by Pat McNees
Who owns (or is assumed to own) the copyright in an interview seems to vary among professions (say, journalists and oral historians) and sometimes those doing the interviewing seem to be taking too much advantage of the people they are interviewing. So I've been digging for insights into the question Who "Owns" an Interview?, as Mark Fowler (Rights of Writers, 1-7-11) puts it: "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."
Fowler refers to an earlier post: Can I Say My Blog Is Copyrighted?: The Basic Nuts and Bolts of Copyright Protection (Rights of Writers, 12-23-10) Here are further insights into the issue:
• Copyright and taped interviews (Reporters Committee for Freedom of the Press) "Under the federal Copyright Act, to be copyrightable, a work must possess originality and be fixed in a tangible medium. Ideas cannot be copyrighted, but the particular expression of an idea may be. Because of these requirements, much interview material often has a weaker claim to copyright."
One court held that "ownership of a copyright can only belong to the individual who fixes an expressive work in tangible form. ... The case is a reminder of the importance of the 'fixation' requirement in copyright. For that reason, where a journalist is not responsible for recording an interview, but instead receives a taped interview from a third party, they do not own the copyright in the material when they use it.
"If an interviewee or other entity sues a journalist for copyright infringement for using material from a taped conversation, a journalist is likely to have a strong argument that they are entitled to use the material, because of First Amendment principles and the “fair use” doctrine."
• Tape-recording laws at a glance (Reporters Committee for Freedom of the Press, 8-1-12)
• Reporter's Recording Guide(Reporters Committee for Freedom of the Press) A state-by-state guide to taping phone calls and in-person conversations.
• Consent and its limits (Reporters Committee for Freedom of the Press, 8-1-12)
• An extreme example: The California anti-paparazzi laws (Reporters Committee for Freedom of the Press, 8-1-12)
• More protections for patients and psychologists under HIPAA (JENNIFER DAW HOLLOWAY, American Psychological Association, Feb 2003) HIPAA's psychotherapy notes provision safeguards sensitive patient information. "Practitioners have long found it onerous to have to release psychotherapy notes for additional treatment authorization by managed-care companies." Now, she says, managed-care companies are only entitled to certain types of information, not including psychotherapy notes.
• Subpoenas And How to Handle Them: Guidelines for Psychotherapists and Counselors (Zur Institute)
• Who Owns Oral History? A Creative Commons Solution (Jack Dougherty and Candace Simpson, Oral History in the Digital Age, Shifting Paradigm Intellectual Property Issues, Fall 2011) They spell out the objections I had to oral historians "taking" copyright from the people they interviewed, which was particularly galling when white historianshttps://digitalrepository.trincoll.edu/cssp_papers/40/ were claiming right to the words of black people they were interviewing. See also Whose Civil Rights Stories on the Web? Authorship, Ownership, Access and Content in Digital History (Jack Dougherty, Trinity College Digital Repository, 4-20-12)
• Are interviews copyrighted? (New Media Rights, 6-28-17) "[T]here are moments when the person being interviewed could in fact have copyright ownership in their words. For example, if the person being interviewed receives a list of questions from the interviewer and records their calculated responses, they could have copyright ownership in their answers because they not the interviewer actually wrote down or otherwise recorded their response. However, courts are hesitant to apply this concept broadly to spoken interviews because of the impact it could have on the First Amendment and the heavy caseload it would bring to an already overloaded court system. See Falwell v. Penthouse Intern., Ltd. This also opens the door for other legal arguments such as fair use. Furthermore, there are times when contractual releases could affect the copyright and alter default copyright rules....Further, if you are being interviewed please be aware that you do not possess ownership over your responses in most situations. It is always best to briefly think about your answer before you respond to avoid the misuse of your words by others. And if you truly don’t feel comfortable being interviewed by a particular media source, remember you always have the power to say no to doing the interview."
• Frequently asked questions about Creative Commons (FAQ)
• Codes of Best Practices and Fair Use Guidelines (Fair use, copyright, social media, and multimedia--WritersandEditors.com)
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by Pat McNees