Re: broadcast speech

On 04/29/98, Michael Seadle <seadle[_at_]mainlib3.lib.msu.edu> wrote:
>
> Is a network broadcast of a person speaking (not reading or repeating a
> printed text) different than common speech on the street to which the
> network has no IP rights, or does the network have IP rights because it
> (probably) recorded the speech and is (probably) playing back that
> recording? I'm assuming the network has added nothing original.

But you can't assume that the network has added nothing original. It has added the original audio-visual elements -- the images and the accompanying sounds (including the sound of the speaker). The network therefore has a copyright in its broadcast as an audiovisual work. That copyright probably would not prevent anyone from copying the text of the speech in writing (that portion is not original to the broadcaster), but it would protect against copying of either the images or the sound or both (unless the use was a fair use).

> In that same scenario, does the speaker have full IP rights, or only
> "moral" rights because s/he had nothing to do with fixing the words?

I am inclined to answer that the speaker does not have any IP rights in this situation. I suspect that is why the statute excludes "audiovisual work" from the definition of literary works. But I would feel differently if the speaker were delivering a rehearsed speech or dramatic performance (or perhaps even an improvised dramatic performance). Then I would feel that the performer SHOULD have a copyright in the underlying literary or dramatic work, even though the network also has a copyright in its audiovisual record of that speech or performance.

How can one achieve these results under the current act? I would argue that audio-visual fixation suffices for the copyright in any underlying literary or dramatic work, excluding ordinary conversation and interviews from copyright as literary/dramatic works on the ground that they are not "works" within the meaning of the act. No one intends that his or her everyday conversation is a "work of authorship." That would leave the network with its audiovisual copyright in the broadcast, but would also protect the underlying works if they are intended to be works of authorship and are sufficiently original. Alternatively, the speaker could be deemed to be a joint author of the audiovisual work in cases such as these.

> Is the situation similar for the subject in a (non-broadcast) taped oral
> history interview?

Yes, the situation is similar, but in this instance, the speaker has a stronger claim to copyright in the interview as a literary work, because the definition of "literary work' does not contain an exclusion for audio recordings, whereas it does contain an exclusion for audiovisual works. I think consent to allowing the interview to be recorded should be considered implied consent to allowing the recorder to copyright the resulting recording, but a court might see it differently. So, a person recording such an interview would be well-advised to get a written assignment of any copyright in writing from the subject before the fact.

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Thu Apr 30 1998 - 19:48:12 GMT