Re: Oral History (Was: Re: broadcast speech)

On 04/28/98, Timothy Arnold-Moore <tja[_at_]mds.rmit.edu.au> wrote:
>
> Michael Seadle <seadle[_at_]mainlib3.lib.msu.edu> wrote:
> >
> > I'm wondering whether this means that oral history interviews (ones
> > where the subject has merely spoken into a tape recorder) would be
> > copyright free? Or is taping thought to be a sufficient act of
> > "fixing" the material, even though it is not "writing it down?"
>

[Snip]
>
> I conclude from this [the definitions in section 101] that an audio tape
> recording is sufficient fixation of a literary work. There is however a
> question of authorship (which I have been debating in private).
>
> The author is the one who first reduces something to permanent form.
> If there are detailed notes then whoever wrote the notes is the author.
> If the taping is the only fixation presumably the recorder has some interest.
>
> If the person taping and the person speaking are the same I see no
> problem.
>
> If they are different, is the speaker an author, the recorder, or are
> they joint authors? What if more than one person records an unprepared
> speech? Are all the recorders joint authors?

There are two copyrights at issue here: the copyright in the speech itself, and the copyright in the sound recording of the speech. The author of the speech holds the copyright in the speech if it was fixed "by or under the authority of" the author. [The Act is entirely unclear what happens if the work was fixed without the authority of the author.]

The copyright in the sound recording depends on the definitions of "work made for hire" and "joint work." If the person who records the speech is an employee of the speaker, then the speaker owns the resulting copyright. If the person is not an employee, but the speech fits one of the nine categories in the definition of "work made for hire" AND there is a written agreement that the work will be a work made for hire, the speaker owns the copyright in the sound recording. Otherwise, the copyright probably is owned jointly. Both the speaker and the recorder contributed copyrightable expression: the speaker contributed the words spoken, and the recorder contributed the way in which those sounds were captured. The Legislative History concurs: "The copyrightable elements in a sound recording will usually, though not always, involve 'authorship' both on the part of the performers whose performance is captured and on the part of the record producer responsible for setting up the recording session, capturing and electronically processing the sounds, and compiling and editing them to make the final sound recording."

There are two caveats. First, the person who recorded the speech might not have contributed expression if his or her recording was purely mechanical and did not involve a minimal degree of creativity. [This is expressly recognized in the legislative history.] Second, some courts have held that both authors must have intended that they be joint authors. That makes sense when someone simply makes editorial suggestions which the true author is free to accept or reject. It is less clear how that standard should be applied here. If the author gave permission to record the speech, that might be considered implied permission to allow the other person to claim copyright in the resulting sound recording as well.

> BTW It appears that under US law if the recording is video then there is
> no fixation of the literary work as audiovisual works are excluded.
>
> "Audiovisual works" are works that consist of a series of
> related images which are intrinsically intended to be shown
> by the use of machines, or devices such as projectors, viewers,
> or electronic equipment, together with accompanying sounds, if
> any, regardless of the nature of the material objects, such as
> films or tapes, in which the works are embodied.
>
> This does not appear to include an audio only recording.

If it is an "audio-only" recording on videotape, it is not an audio-VISUAL work, since there is no visual element.

If there IS a visual element, then the work that is fixed is an audio-visual work. But the copyright in that audio-visual work could still be enforced against someone who copied only the words of the speech embodied in that audio-visual work. The only difference is that the audio-visual work is probably a work of joint authorship, whereas only the speaker would be the author of the literary work.

My instinct resists that conclusion, however. I think that a U.S. court would be inclined to hold that there are two works: the literary work (the words spoken) AND the audio-visual work. A "literary work" is an intangible creation that becomes copyrightable when it is fixed. The speech is still a work "expressed in words," and the speech itself is not an "audio-visual work" even though it has been fixed in an audio-visual medium. That's pretty weak, though, since it would render the exclusion "other than audio-visual works" in the definition of literary works surplusage.

Does anyone have any insight as to why the exclusion exists?

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Thu Apr 30 1998 - 02:04:15 GMT