united-states copyright recording right-of-publicity
Publishing (non-commercially) a video-interview with a celebrity online, without written consent
<p>Suppose that several years ago a non-profit organization made a short video-interview with one of the most famous US performers, who very rarely gives interviews.</p>
<p>Suppose that it was recorded in Switzerland after one of his performances. The organization did not collect any written consent.</p>
<p>Now the organization (which is based in Switzerland) would like to publish this recording online to make it publicly available. The organization is strictly non-profit and for public benefit (in the US it would be a 501 (c)(3) ).</p>
<p>Suppose that there is a delicate part in the interview where the performer mentions his religious beliefs.</p>
<p>Since the performer lives in the US, US law is applicable.</p>
<p>Given that the interview was made with implicit consent (he was in front of a camera), and will not be commercially exploited, does the organization have a right to publish it? What legal actions could the performer  successfuylly take in response?</p>

<p>This is a surprisingly complex question, with several aspects. There is the question of what jurisdiction's law to apply, there is the question of copyright, and there is the question of personality rights, also known as a right of publicity.</p>
<h2>Whose Laws</h2>
<p>The question says:</p>
<blockquote>
<p>Since the performer lives in the US, US law is applicable.</p>
</blockquote>
<p>This is generally incorrect, or at least oversimplified. If there were an agreement between the performer and the organization, that agreement might specify what jurisdictions law applies. In the absence of such an agreement, the law of the place of publication will most likely apply. But since the intent is to publish on the internet, it is in effect published everywhere that an internet connection is available, which is almost all of the world. Legal action might be brought in any country with an internet presence. Particularly likely is the location of the organization, which seems to be Switzerland, and the residence of the performer, the United States.</p>
<p>If the interview were to be published in a print publication circulated primarily in a single country, the law of that country would be the normal choice.</p>
<p>Most of the discussion and caselaw I have been able to find is about US law, but some applies to UK or EU law.</p>
<h2>Copyright</h2>
<h3>Fixation</h3>
<p>In all countries adherent to the <a href="https://wipolex.wipo.int/en/text/283698" rel="nofollow noreferrer">Berne Copyright Convention</a>, works are protected by copyright as soon as they are &quot;fixed in some material form&quot; (article 2 of the convention). In US law <a href="https://www.copyright.gov/title17/92chap1.html#102" rel="nofollow noreferrer">17 USC 102</a> provides that:</p>
<blockquote>
<p>Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression</p>
</blockquote>
<p>Interviews have sometimes been denied copyright protection on the grounds that they were not fixed, but where an interview is recorded in audio or video form as it is made, it is clearly fixed in a tangible form, and protected by copyright.</p>
<h3>Ownership of Copyright in an interview</h3>
<p>The general rule is that copyright initially belongs to the &quot;author&quot; of a work (Articles 3 and 5 of Berne, <a href="https://www.copyright.gov/title17/92chap2.html" rel="nofollow noreferrer">17 USC 201</a> But courts have been divided on who is the &quot;author&quot; of an interview.</p>
<p>Most often the view has been taken that the interviewer (or the interviewer's employer) is the author, and holds initial copyright.</p>
<p>Some cases have considered the interview to be a compilation with the interviewer holding copyright on the questions, and the subject of the interview (interviewee) holding copyright on the answers.</p>
<p>And in some cases an interview has been treated as a joint work by the interviewer and the subject, making them joint owners of the copyright.</p>
<h3>Cases</h3>
<h4><em>Falwell v. Penthouse Intern</em></h4>
<p>In the case of <a href="https://law.justia.com/cases/federal/district-courts/FSupp/521/1204/1664770/" rel="nofollow noreferrer"><em>Falwell v. Penthouse Intern., Ltd.</em>, 521 F. Supp. 1204 (W.D. Va. 1981)</a> a claim by the interview subject, the Rev Jerry Falwell, for copyright in an interview, was denied (along with claims for false light, defamation, conspiracy, and violation of personality rights, all of which were also denied).</p>
<p>Judge Turk of the U.S. District Court for the Western District of Virginia wrote on the copyright claim in an interview:</p>
<blockquote>
<p>Plaintiff's claim of copyright is not founded on any existing principle of law, nor is it even analagous to any of the circumstances which heretofore have been contemplated by the courts. Plaintiff's claim of copyright presupposes that every utterance he makes is a valuable property right. If this were true, the courts would be inundated with claims from celebrities and public figures ...</p>
<p>Plaintiff cannot seriously contend that each of his responses in the published interview setting forth his ideas and opinions is a product of his intellectual labors which should be recognized as a literary or even intellectual creation.</p>
<p>Although the general subject matter of the interview may have been outlined in the reporters' minds prior to their meeting with plaintiff, the actual dialogue, including the unprepared responses of plaintiff, was spontaneous and proceeded in a question and answer format. There is no defined segregation, either by design or by implication of any of plaintiff's expressions of his thoughts and opinions on the subjects discussed which would aid in identifying plaintiff's purported copyrighted material. ...</p>
<p>In the case at bar, plaintiff willfully and freely participated in the interview. An interview with members of the media is not a private conversation. Like a press conference, plaintiff in this action responded to questions in a spontaneous manner and not from a carefully prepared text or even from notes. Moreover, plaintiff was aware that his comments were not made in the context of a private conversation but rather were destined expressly for dissemination to the public. Plaintiff is free to pursue a breach of contract action against the journalists. But he is trampling upon fundamental constitutional freedoms by seeking to convert what is essentially a private contractual dispute into a broad-based attack on these principles of freedom of speech and press which are essential to a free society.</p>
</blockquote>
<h4><em>Taggart v. WMAQ Channel 5 Chicago</em></h4>
<p>In <em>Taggart</em> the court held that an interview subject (a prison inmate) had no copyright in teh answers given. I have not been able to find a copy of the decision online, but it was cited and described in <a href="https://orgs.law.harvard.edu/bsa/files/2011/01/Ames-Record-9-3.pdf" rel="nofollow noreferrer"><em>Michael G. Scott v. Scranton Greeting Cards, Co.</em>,
No. 16-345</a>  The opinion said in relevant part:</p>
<blockquote>
<p>Here, I follow <em>Taggart v. WMAQ Channel 5 Chicago</em>, No. 00-cv-4205, 2000 WL 1923322 (S.D. Ill. Oct. 30, 2000). The court in <em>Taggart</em> refused to allow a prisoner who had
submitted to an interview with a television station to use the copyright law to force the station to destroy the tapes of their interview, on the ground that the interview responses were not copyrightable by the interviewee.</p>
<p>The <em>Taggart</em> court gave at least three reasons for denying the plaintiff’s “singular and unjustified” attempt to claim copyright in the oral responses to the interviewer’s questions: (1) there is no copyright in the spoken word; (2) the interviewee is not the “author” of any published work; and (3) the
responses were uncopyrightable facts.</p>
<p>Although I do not find here that the
interview responses consisted of uncopyrightable facts, I am persuaded that
there is no copyright in the spoken word and, most importantly, Scott was not the “author” for copyright purposes of any copyrightable “work.” See 17 U.S.C. § 102 (providing that copyright subsists only in “original works of
authorship fixed in any tangible medium of expression”).</p>
<p>I recognize that there is dicta that disagrees with this position. The district court in <em>Swatch Group Management Services. Ltd. v. Bloomberg L.P.</em>, 808 F. Supp. 2d 634 (S.D.N.Y. 2011), for instance, refused to dismiss a case where the defendant alleged that the interview responses given during
a corporate earnings conference call were not copyrightable. Likewise, the court in <em>Maxtone-Graham v. Burtchaell, Andrews &amp; McMeel, Inc</em>., 803 F.2d 1253 (2d Cir. 1986), implied that authors of books containing
interviews must get copyright assignments from the interviewees before the authors can sue for infringement based on use of the interviewees’ words. Book authors would only be required to obtain copyright assignments from interviewees if the interviewees held the copyright in their responses in the
first place.</p>
<p>Moreover, some academic commentary takes a different tack altogether and suggests that interviews should be considered “joint works,” where the copyright in the entire article is held jointly by the interviewer
and the interviewee. The reasoning here is that “the questions and answers in an interview are contemporaneous” and so the resulting interview is a joint product of both parties. See Paul Goldstein, <em>Goldstein on Copyright</em> § 4.2.1.3 (3d ed. 2016). ...</p>
<p>But these positions both run up against two fatal flaws. First, ..., granting any form of copyright ownership to interviewees is
generally inappropriate, because they are not “authors” of their own “works.” Instead, they simply answer questions and leave it up to
interviewers and publishers to create the published interviews, which often contain introductions and edits. It is the published interview that is the “fixed” work and therefore the proper subject of copyright. Interviewees typically have no control over that fixation nor any hand in the resulting
work; they only take part in the conversation that led to the work. They thus have no authorship interest at all—joint, solo, or otherwise.</p>
<p>Second, denying interviewees any copyrightable interest in interviews
published in newspapers or magazines is the only way to maintain the delicate balance between the First Amendment and intellectual property protection that the Copyright Act demands. ... But there is no evidence that Congress ever meant to reverse the
centuries-old understanding that publishers ultimately control the use and reuse of interviews and quotations that appear in their pages.</p>
</blockquote>
<h4><em>Donoghue v Allied Newspapers</em></h4>
<p>In the case of *Donoghue v Allied Newspapers[1938] Ch 106 The UK high court denied the claim of an interview subject to control the republication of an interview.</p>
<p>Donoghue, then a popular jockey, gave an interview to a journalist in return for payment. The journalist wrote and published a series of articles, apparently recasting Donoghue's words. Later the journalist wrote a separate article for a different publication, reusing the contents of the interview. Donoghue demanded additional payment, and sued for copyright infringement.</p>
<p>Chloe Sevil  (see sources) wrote:</p>
<blockquote>
<p>The court ... found that Donoghue did not own the copyright in the articles. If the journalist had substantially reproduced Donoghue’s own words or had copied them word-for-word in the articles, then Donoghue may have been able to claim copyright. As Donoghue had only supplied the idea for the articles, he wasn’t the author of the article and therefore not its copyright owner.</p>
</blockquote>
<p>This case cuts both ways, as it suggests that the subject may own copyright in the exact words of the interview. I have not found a copy of the opinion online.</p>
<h2>Rights of Personality</h2>
<p>In some jurisdictions a person, particularly a famous or well-known person, has a right to control the use of his or her name or likeness for commercial purposes, particularly including the promotion of any product, service, or business. This is true in some but not all US states, and is a matter of state law in the US. This is also known as the right of publicity.</p>
<p>If an interview, or an except or an image from it were used to promote any commercial interest, this right might well require the permission of the subject. the right of publicity does not generally extend to the publication of the interview itself, even if it is a commercial publication. This is all the more true for a non-commercial publication.</p>
<p>So rights of publicity would not affect the publication described in the question.</p>
<h2>Sources consulted</h2>
<ul>
<li><p><a href="https://www.newmediarights.org/are_interviews_copyrighted" rel="nofollow noreferrer">&quot;Are interviews copyrighted?&quot;</a> 1917 article by *New Media Rights</p>
</li>
<li><p><a href="https://www.uipress.uiowa.edu/authors/rights-permissions.htm" rel="nofollow noreferrer">&quot;Rights &amp; Permissions&quot;</a> University of Iowa Press</p>
</li>
<li><p><a href="https://legalvision.com.au/what-are-the-exceptions-to-copyright-ownership/" rel="nofollow noreferrer">&quot;Who Owns the Copyright in an Interview or Social Media Post?&quot;</a> by Chloe Sevil of LegalVision.</p>
</li>
<li><p><a href="https://articles.ibpa-online.org/article/who-owns-an-interview-insights-into-copyright-cases/" rel="nofollow noreferrer">&quot;Who Owns an Interview? Insights into Copyright Cases&quot;</a> a 2021 article by Lloyd L. Rich (an attorney practicing publishing, cyberspace, and intellectual property law), published by the Independent Book Publishers Association.</p>
</li>
<li><p><a href="http://www.rightsofwriters.com/2011/01/who-owns-interview.html" rel="nofollow noreferrer">&quot;Who 'Owns' an Interview?&quot;</a> by Mark Fowler , postesd on hius blog <em>Rights of Writers</em> Folwer describes himself as: &quot;an attorney in New York City with 29 years of experience working for media companies - book and magazine publishers, newspapers, broadcasters, and online publishers, among others. For eight years before going to law school I was a writer and editor...&quot;</p>
</li>
<li><p><a href="https://www.ipiustitia.com/2013/12/retrospective-authorship.html" rel="nofollow noreferrer">&quot;Retrospective - Authorship&quot;</a> by  Jani Ihalainen in IP Iustitia</p>
</li>
</ul>
<p>(<em>I will be adding to this answer shortly. -DES</em>)</p>
