Trump Files Ridiculous Copyright Lawsuit Over Bob Woodward’s Audio Book
Believe it or not, there are some interesting, if confusing, unsettled copyright law questions regarding interviews. A few times in the past we've written about the subjects of interviews claiming copyright over those interviews (or the estate's of deceased individuals making such claims). There was even a law journal article a few years back exploring this topic. As that piece notes, because courts have been a bit all over the map in looking at the issue, it has allowed interviewees to chill journalistic speech."
Frankly, all of this seems ridiculous to me. There seem to be many, many reasons why interviewees should have zero legitimate copyright interest in their interviews. For one, there's an implied license in granting the interview. If they wanted conditions on the interview that should have been negotiated at the beginning. Second, if the interviewee has any significant copyright in the work, it would be a rather thin one as they're only answering questions posed by the interviewer, and they're generally not the one fixing" the work in whatever medium. Third, the entire purpose of copyright is to create incentives for creative output, but that makes no sense for an interviewee. What interviewee is incentivized because of the alleged copyright? Under the fair use factors test, I'd think that factor 2 would lean heavily towards making interviews used by the interviewer obvious fair use. You could go on and on about this, but the whole idea that the interviewee has some sort of copyright claim over an interview seems ridiculous.
As that paper notes, the only real purpose it serves is to chill journalistic speech.
Now, as someone with years of experience chilling journalistic speech, former President Donald Trump has sued Bob Woodward for copyright infringement for releasing audio recordings of his interviews with Trump. The complaint is... laughable. It's not good. Like so many of Trump's frivolous lawsuits, it's full of nonsense and bluster. I mean:
Prior to commencing this litigation, President Trump and his counsel confrontedDefendants with their wrongdoing; however, they brazenly refused to recognize PresidentTrump's copyright and contractual rights. Instead, they proffered various flawed and irrelevantjustifications which are unavailing and devoid of any legal merit. Rather than cease theirinfringement, or even account to President Trump, the Defendants have doubled down; in anavaricious attempt to reap more benefits from their ongoing violation of President Trump'srights, Defendants have converted the audio not only into an audiobook but also into derivativeworks, including a CD, paperback, and e-book-again, all at the expense of President Trump andwithout accounting to him.
The crux of the lawsuit: Trump was fine with the interviews he gave Woodward for his book, but is now claiming copyright violation because Woodward has published the audio versions of the interviews he conducted with Trump as a separate audiobook, The Trump Tapes."
The complaint spins this as a greedy money grab after Woodward's 2021 book about Trump, Rage," didn't sell as well as his earlier book about Trump. You can almost picture Trump himself telling lawyer Robert Garson to include some of these lines. I mean, not the exploit, usurp, and capitalize." That's from a lawyer but calling Rage a complete and total failure," sounds very Trumpian.
In publishing Rage, Woodward clearly hoped to replicate the success of Fear, but he failedto do so. Faced with the reality that Rage was a complete and total failure, Woodward decidedto exploit, usurp, and capitalize upon President Trump's voice by releasing the Interview SoundRecordings of their interviews with President Trump in the form of an audiobook
The complaint argues that Trump retained" the commercialization and all other rights" to the interviews he gave, and that he only gave permission to use the interviews for the original book, Rage.
While the complaint makes much of a few times in the recordings where Trump clarifies that these interviews are for the book," in context, it's pretty clear that all he's concerned about is that the information he provides won't show up in news stories prior to the 2020 election (something Woodward was later criticized for, as some of the revelations in the book seemed newsworthy in the leadup to the 2020 election). There is no indication at all that Trump is reserving commercialization" rights to his statements.
Because everyone knows that's nonsense and not how any of this works.
They also seem upset that... the interviews weren't published in full (which seems sorta like the the food is terrible... and the portions are too small" kinda situation). They claim that portions of the interview are selectively omitted" but then the examples they give make it pretty clear why those portions were omitted. Some of them involve random asides from Trump to deputy press secretary Hogan Gidley, and some of it is just useless tangents from a guy somewhat infamous for useless tangents.
The claims in the case are silly as well. For the copyright claim, they're asking for declaratory relief (in effect, a statement from the court saying that Trump has a copyright in the interview). But some of it is crazy:
President Trump is entitled to a declaratory judgment that he owns the Interview SoundRecordings, Audiobook, and Derivative Works in full and therefore is entitled to all revenuesarising from the exploitation of such works.
Except, from the sound of it, Woodward made the sound recordings himself, so it's hard to see how Trump has a copyright interest in them. There is also an in the alternative" argument that he at least holds the copyright in the responses part of his sound recordings, but again as described above that seems silly.
Basically everyone with any experience in the space knows this whole thing is nonsense. CNN's Oliver Darcy asked a bunch of experts:
Charles Tobin, a First Amendment attorney, said it has no legal merit whatsoever" and is just another example of Trump trying to control the news."
Ted Boutrous, another First Amendment attorney, said the Constitution protected Woodward's right to publish the audio, adding, This is yet another frivolous lawsuit by Donald Trump intended to punish and chill freedom of the press that once again displays his complete misunderstanding of journalism."
Floyd Abrams, the renowned First Amendment attorney of Pentagon Papers fame, told me he can't think of a less successful litigant of public note than Donald Trump" and said he didn't see any clear basis for Trump maintaining that Woodward agreed that the on-the-record interview could not be published or otherwise disseminated by Woodward as he did."
Rebecca Tushnet, the Frank Stanton Professor of First Amendment Law at Harvard Law School, described most of the claims" in the lawsuit as obviously garbage," explaining they are preempted by federal copyright law." (Tushnet, however, did say that the underlying copyright issue is interesting, given there is little case law on the subject.)
Anyway, this all seems fairly typical of Trump's legal strategies these days. File nuisance lawsuits at the drop of a hat with little basis in reality and little chance of success.