re: Trump sues Bob Woodward for nearly $50M over release of interview recordings

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AggieHank86

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Without contractual details, this is difficult to sort out. But if rights/ownership of the tapes are not contractually specified, would Trump have any angle here?

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Lots to unpack.

If Trump was unaware that the interview was being recorded, he might have an argument that the recording was illegal (depending upon the state in which the interview was conducted). In some states it is illegal to record a conversation, unless BOTH parties know that it is being recorded. In others, only one party must know.

But that seems unlikely. Trump was almost-certainly aware of the recording device. Paragraph 31 of the Complaint seems to confirm. And he does not seem to be asserting any sort of violation of the criminal law anyway.

As I understand it, "on the record" or "off the record" does not have much legal meaning. It is more a question of journalistic ethics. If Woodward agreed that parts of the interview were "off the record" and then released that information, his behavior would be unethical. The effect is pragmatic, more than anything. If a reporter routinely agrees to converse "off the record" and then publishes, people will become unwilling to grant him interviews.

Here is the Complaint filed by Trump. It looks like he is claiming that he owns a copyright interest in his recorded answers to Woodward's recorded questions (in which Woodward would own a copyright) and that he granted only a very limited license for the use of his recorded words.

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The Defendants’ actions are, inter alia, in direct contravention of the law laid out in the compendium of U.S. Copyright Office Practices, which sets forth a presumption that “the interviewer and the interviewee own the copyright in their respective questions and responses unless (i) the work is claimed as a joint work; (ii) the applicant provides a transfer statement indicating that the interviewer or the interviewee transferred his or her rights to the copyright claimant, or (iii) the applicant indicates that the interview was created or commissioned as a work made for hire. See Compendium of U.S. Copyright Office Practices, 3d Ed. (2021).

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On its face, this just does not make much logical sense, because the result would be that every journalistic interview would be owned jointly, meaning that the reporter could never publish anything to which the interviewee does not provide advance consent of the content. It would mean the end of investigative journalism. As such, I suspect that the law varies somewhat from what Trump's attorneys are representing, but I have not researched the matter.

Trump acknowledges that the interviews were being recorded "for a book." As best I can tell, he is asserting that Woodward had a contractual license to use the recordings to WRITE a book (see paragraph 118), but did not have a similar license to release Trump's verbal responses. IN the alternative, he seems to be arguing that the audio book is a second (and different) publication than the physical book, and that Trump granted a license only for the PHYSICAL book and not for the second/audio book.