Trump alleges that the publication of the audio tapes violates his rights because he only consented for the interviews to be used in the book although no written agreement exists to that effect. The lawsuit names Woodward, Simon & Schuster and the publisher’s parent Paramount Global as defendants and seeks damages of $49.98 million dollars. They have denounced the suit as “without merit.”
The case is likely to be thrown out like other Trump lawsuits. Trump’s lawyers do not seem to understand that one of the requirements for copyright is that the work has to be fixed in a tangible medium of expression to be copyrightable. Extemporaneous conversations are not copyrightable because they have not been fixed in a writing, on audio tape, or some other stable medium. Trump did not record these interviews, Woodward did.
Another requirement for copyright is originality. Here Woodward created his questions, but not Trump’s answers. So, Woodward may not own the copyright in Trump’s answers to his questions, but that does not mean that Trump has a copyright interest in them.
In the Estate of Hemingway v. Random House, Inc. (1966), book author A.E. Hotchner authored a book titled Papa Hemingway. It incorporated long conversations between the author and Ernest Hemingway. They had been close friends for 13 years and went on drinking escapades and travels together. Hotchner took notes and published several articles incorporating their conversations. Hemingway liked the articles. After Hemingway’s death, his estate sues Hotchner, seeking an injunction against the book and damages for infringement of common-law copyright. The court refused to find that Hemingway had any rights in their conversations.
In the case of Falwell v. Penthouse Int’l, Ltd., Jerry Falwell an evangelical fundamentalist minister objected when interviews with him were published in softcore porn magazine Penthouse. Falwell claimed that the interview appeared without his consent and contrary to specific conditions given orally to the defendants at the time of the interviews. Reverend Falwell objected to his interview appearing in this publication. However, the court found against Falwell stating:
Plaintiff’s claim of copyright is not founded on any existing principle of law, nor is it even analogous 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 all of whom may argue that their expressions should also be afforded the extraordinary protection of copyright. Such a result was never contemplated by the development of the law regarding common law copyright, and such a result would run counter to the firmly established constitutional guarantees of freedom of speech and of the press. Falwell v. Penthouse Int’l, Ltd., 521 F. Supp. 1204, 1207-08 (W.D. Va. 1981).
Recently a Florida judge ordered Trump and his lawyer to pay nearly $1 million in sanctions to cover the legal costs of Hillary Clinton and others sued by Trump alleging a conspiracy to target him for criminal prosecution.
Read the Rage lawsuit.