Trump’s Woodward Lawsuit Called Flawed, Intriguing by IP Lawyers

Former President Donald Trump’s copyright claim in a lawsuit against author Bob Woodward faces several major obstacles while touching on unsettled questions about intellectual property rights over recorded interviews.

Trump’s litigation against Woodward, his publisher Simon & Schuster Inc., and its parent Paramount Global targeted the release of audio recordings of 2019 and 2020 interviews without permission.

He’s demanding $50 million and seeking a court order declaring that his responses are creative expressions that grant him sole authorship over the recordings, a copyright that would extend to derivative works such as Woodward’s audiobook, “The Trump Tapes: Bob Woodward’s Twenty Interviews with President Donald Trump.”

That copyright claim could sink on several grounds, according to copyright lawyers who largely regard the claim—on the whole—as frivolous. Intuition suggests to many that an interviewee has no expectation of being able to prevent an interviewer from using their responses.

But by-the-book application of copyright law to that expression can lead to surprisingly complex applications in a scenario almost entirely unaddressed by courts, attorneys and academics said. Implicated questions of implied license and the “fair use” doctrine—which conditionally allows for unlicensed use in some situations—could also apply broadly to photography subjects, actors, and others.

“The question of copyright in interviews is genuinely interesting,” intellectual property law professor Rebecca Tushnet of Harvard University said. “Unfortunately it doesn’t seem that these lawyers are going to have the capacity to analyze these issues in any helpful way,” she said, referring to pleading deficiencies in the current complaint.

The case, though “a perversion of copyright law,” also adds to a growing list of examples of the increased prominence of intellectual property, law professor Jessica Silbey of Boston University said.

“It’s super fascinating to me as an intellectual property lawyer that copyright is being used by the former president of the United States to try and suppress speech, that intellectual property laws have become the subject of national attention when they were so peripheral,” Silbey said. “I think that’s good, that intellectual property matters to a lot of people.”

Authorship

Trump’s US District Court for the Northern District of Florida complaint includes breach of contract, unjust enrichment, and unfair trade practices claims. He characterized himself as the sole author of the recording.

Trump alleged he granted Woodward a “limited license” to use his responses for Woodward’s book preceding the audiobook, and said he “never conveyed any copyright” or expanded the scope of that license. He added he “never sought to create a work of joint authorship, and in the hours of the interviews.” Woodard “appears to have had no intent to write an audiobook when initially recording” Trump, the complaint said.

Trump’s attorney Robert Garson of GS2 Law PLLC said Trump and Woodward repeatedly clarified during the tapes that “this is for the book,” making it clear Trump had placed limitations.

“The initial furor has died down that ‘this is just another Trump lawsuit,’” Garson said. “Now you’re starting to see more considered articles coming out saying ‘there’s a real point here.’”

He pointed to the importance of release agreements, calling them “integral.”

“If Simon & Schuster can show me a release, if Bob Woodward can show me a release, this case will have a very different complexion.”

Last month, a Florida federal judge said Trump “is repeatedly using the courts to seek revenge on political adversaries” while fining him and his lawyers $1 million over a “frivolous” and “bad faith” lawsuit against Hillary Clinton and others.

But the former president’s copyright argument isn’t frivolous given the law’s copyright protection of the spoken word, intellectual property attorney Mark Jaffe of 5 Bridges Law PC said.

“I don’t think it’s unreasonable that someone who spent the bulk of the time speaking has a copyright interest,” Jaffe said. “If it were pleaded better it might be legally correct.”

Simon & Schuster declined to comment for this story, but previously said in a joint statement with Woodward that the “lawsuit is without merit.” All interviews were on the record and recorded “with Trump’s knowledge and agreement,” the statement said.

With regard to authorship, Silbey said Woodward, not Trump, would be the author as he’s the one directing the work. Trump’s “not even a co-author” as that requires mutual agreement to be jointly authoring a work, she said.

Varied Interpretations

No appeals courts appears to have squarely addressed the issue. The US Court of Appeals for the Second Circuit in 2014 upheld Bloomberg LP’s fair use win over an investment group claiming rights to answers to questions on a recorded earnings call. But because Bloomberg had prevailed, the appeals court refused to rule on the company’s cross-appeal seeking reversal of a New York federal judge’s finding that the recording qualified for copyright protection.

Bloomberg Law is operated by entities controlled by Michael Bloomberg, the founder and majority owner of Bloomberg LP.

Sparse district court rulings are not unanimous. A District of Columbia federal judge found in 1980 that Newsweek’s use of a quote to be fair use of part of a copyright-protected interview. But an Illinois federal judge ruled in 2000 that answers by an inmate to an NBC Channel 5 Chicago TV reporter “simply do not rise to the level of a literary or intellectual creation” that copyright law protects.

The US Copyright Office, for its part, said in its 1984 compendium that it believes each party in an interview has a right to claim a copyright in their own expression absent an agreement otherwise.

A 2016 law review article on the topic by intellectual property attorney Mary Catherine Amerine of Shearman & Sterling LLP notes the “lack of consensus.” She said various approaches employed by courts create serious legal or practical problems, and argued the interview should be viewed as a whole, with the interviewer, as its “mastermind,” the copyright owner.

Tushnet suggested co-authorship might be “the most appealing characterization” of an interview given its interactive nature. But that might not appeal to Woodward, because while co-authorship leaves him free to use the recording as he wants, he would owe Trump a 50% share of royalties derived from its use.

Tushnet also suggested that even if Trump owned his words, the context of a journalist’s interview would inherently carry an implied license unless there was an agreement not to use it in some way.

“If you give a quote to a journalist, unless you say you are not to be quoted, there must be a license. Even if we assume you own the copyright,” Tushnet said.

Registration, Government Bars

The first hurdle Trump will have to clear, attorneys said, is that the complaint didn’t plead that Trump has registered a copyright with the Copyright Office. But while the law explicitly requires pre-litigation registration for infringement suits, some argued that a claim for ownership of a copyright does not.

Garson noted that Trump couldn’t register the works because he didn’t have the tapes. The Copyright Office requires a deposit copy to be submitted with a registration application.

Jaffe pointed out that in any case Trump couldn’t get the $50 million demanded within his copyright claim without an infringement finding, which requires the existence of a copyright registration. He also noted Trump asked for punitive damages, which aren’t available under copyright law, he said.

Another question raised by copyright lawyers was whether Trump’s job prevents him from owning any copyright at all. Section 105 of the Copyright Act generally bars copyright protection for any work “prepared by an officer or employee of the US government as a part of that person’s official duties.”

“He was president at the time. The federal government cannot own a copyright in its own work,” Silbey said. “Even if the interview was his copyrighted work, which is dubious, he was a federal government actor being interviewed as president of the United States, so that’s public domain.”

But there has been legal debate over whether an elected official qualifies as a government “officer or employee.” Trump could also argue the interviews weren’t part of his official duty.

Jaffe said interpreting “officer or employee” and “official duties” that broadly could put any book written by, say, a sitting congressperson into the public domain. He said it also—while fatal to his copyright claim—could help Trump’s defense in defamation cases. Trump argued just last month, for example, that he was acting in his official capacity when he denied E. Jean Carroll’s rape allegations in 2019.

Fair Use

Even if Trump registered a copyright, established authorship, and wasn’t an employee performing governmental duties, Woodward could still win a fair use ruling, attorneys said. Fair use consists of a four-factor test, and courts can add factors they find relevant.

That Trump didn’t seem to have made the comments with any expectations of monetizing them could help Woodward’s fair use case, attorneys said. Courts often deem the effects on the market for the original as the most important factor.

Woodward published huge chunks of the recording for profit, which would weigh against him. But the newsworthiness and free speech-invoking journalistic aspect of Woodward’s audiobook could swing the pendulum the other way—especially in light of Trump alleging on Twitter in advance that the book “will be a FAKE, as always.”

Garson said the question was whether a fair use analysis applies “if you’ve limited yourself contractually.” He also argued the newsworthiness of the recording was offset by Woodward’s actions.

“What was really the compelling aspect of this? It was hearing Trump’s voice, hearing him articulate it with the expression in his voice,” Garson said. “Otherwise the newsworthy aspects are in the original book.”