The Differences Between Copyright And Possession: Gilda Radner Interview Copyright Lawsuit Dismissed For Lack Of Registration

from the well-this-is-a-fun-one dept

Over the years, we've written about a few legal disputes regarding the question of who (if anyone) holds the copyright on an interview. That question was potentially at issue in a dispute over some audio recordings of comedian Gilda Radner being interviewed by journalist Hillary Johnson. Johnson was apparently hired by publisher Simon & Schuster in 1987 to interview Radner (who was already dealing with the ovarian cancer that would eventually lead to her death), in order to help Radner write an autobiography. Radner's brother, Michael, kept the tapes of the interview, and they were "found" recently, and used in a recent documentary about Radner. According to the film's director, Lisa D’Apolito, Michael Radner had handed over boxes of Radner's stuff to her to use for the film.

The filmmakers, after finding the tapes of Johnson interviewing Radner, had reached out to Johnson about possibly interviewing her for the documentary, but when Johnson demanded money to be interviewed, they moved on. Johnson then argued that she holds at least some copyright interest in the interviews, and sued. There are, of course, lots of questions about who holds a copyright in an interview -- and some of us believe that such interviews don't deserve copyright protection at all, as it's not the copyright that is creating the incentive here. But, this case got tossed out on a different kind of technicality: Johnson has no registration for the copyright, even if she actually has a copyright interest in the interview, and you can't sue over a copyright if you haven't registered it.

And, the case is even a bit more interesting than that, because Johnson claims the problem is she can't register the copyright because she doesn't have the tapes and Michael Radner (who is also a defendant) won't give her the tapes so she can run down to the Copyright Office and register them. This makes it all quite simple for the judge:

Plaintiff concedes she has not registered a copyright in any audiotape of a recorded interview. Indeed, both the amended complaint and plaintiff’s opposition to the instant motion acknowledge that plaintiff’s “inability to register her [alleged] copyrights deprives her of any right to sue for infringement.”...

Accordingly, plaintiff’s copyright infringement claim is dismissed.

Indeed, the case is so open-and-shut that the judge has said that Johnson has to pay the legal fees of the defendants she sued.

Here, the amended complaint contains one substantive claim—the copyright infringement claim against the moving defendants. Yet in the very complaint through which plaintiff asserts that claim, plaintiff acknowledges she currently has no right to do so.... Plaintiff’s opposition to the instant motion likewise recognizes that plaintiff’s “inability to register her copyrights deprives her of any right to sue for infringement.”...

The Court finds objectively unreasonable plaintiff’s attempt to prosecute a claim that her own pleading acknowledges she has no right to pursue at this time. Indeed, in the Court’s view, the amended complaint’s concession that plaintiff’s copyright infringement claim is nonviable renders that claim frivolous. Although the Court does not discern any improper motive behind plaintiff’s claims, nor is the Court eager to award attorney’s fees, the Court nonetheless concludes that awarding the moving defendants costs and a reasonable attorney’s fee is warranted under the circumstances of this case.

I've seen some of the copyright system's regular defenders insisting that this case is a travesty of justice, and a reason why the US should get rid of the requirement for works to be registered before you can sue. This is... crazy. Indeed, if anything, we should be moving back in the other direction, and require registration to get a copyright in the first place. The issue here is one of pure greed. This interview does not exist because of a copyright-driven incentive. Johnson was hired to do a job and she did it. It seems clear she then didn't keep the tapes or think there was any commercial value in the tapes. She had nothing to do with their rediscovery or the new movie. She just wanted to get paid for something she apparently was already paid to do decades ago.

But, once again, this highlights the difference between possessing the actual "content" (or the medium in which content is "fixed") and holding a copyright on that content. It's one of those issues that trips people up -- but also highlights yet again why copyright is not property in the traditional sense. This was a good and easy ruling, and the way to fix such "weird" situations is to go back to a system of formalities, where registration is necessary to even get the copyright in the first place. Then you don't have greedy people showing up years later, demanding a cut of something when they never had any copyright interest previously.

Filed Under: copyright, gilda radner, hillary johnson, interview, lisa d'apolito, michael radner, possession, property rights, registration


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  • identicon
    Pixelation, 25 Sep 2019 @ 3:40am

    If IP maximalists had their way

    Everything would have a cost to use it, in perpetuity. Imagine paying a fee for using anything your house, each and every time. Well, I bought the house, but I don't own the rights to it...

    reply to this | link to this | view in chronology ]

  • icon
    Peter (profile), 25 Sep 2019 @ 4:25am

    Just out of curiosity. Did Oracle register Java-APIs copyright

    Before they sued Google? And did the Copyright-office grant the copyright for APIs?

    reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 25 Sep 2019 @ 4:30am

      Re: Just out of curiosity. Did Oracle register Java-APIs copyrig

      Sun did in all likelihood register it, since the API predates Oracles purchase of Sun.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Sep 2019 @ 6:11am

        Re: Re: Just out of curiosity. Did Oracle register Java-APIs cop

        Sun also publicly stated their intent to open source java

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Sep 2019 @ 9:29am

          Re: Re: Re: Just out of curiosity. Did Oracle register Java-APIs

          They did open-source it, and Oracle continues to use an open-source license.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2019 @ 5:31am

    Jeez! isn't it about time this whole copyright and trademark thing got thrown out completely and forever? all they do, either or both is allow some lazy cunts to keep milking money from others, when they haven't done fuck all in the first place and dont intend to do anything in the future!! the restrictions everyone then encounter are numerous and usually unwarranted, plus the way that 'the future' is held back simply because those same greedy bastards cant bear to have to do something themselves, wanting to keep control of the Planet for as long as possible, is a fucking disgrace!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2019 @ 5:32am

    Finally, some copyright law getting enforced...

    reply to this | link to this | view in chronology ]

  • identicon
    Antonymous Coward, 25 Sep 2019 @ 6:07am

    Next installment: Simon & Schuster claim the interviews were work for hire and are covered by their copyright on the final book.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Ken Ettic the Asteroid-buster, 25 Sep 2019 @ 6:54am

    Catch-22 for a person who expected fairness and honest dealing.

    You of course delight in the unfairness of it.

    The case would be clear if the tapes were returned as decency requires. Of course YOU are against any copyright enforcement.

    You have no problem with people who DIDN'T work getting money. Here, that's the film-maker grifting off both life of famous person AND the one who interviewed.

    Doesn't bother you at all even when the resulting film will be copyrighted!

    Because you're totally inconsistent.

    Now, YOU, MASNICK, were given an Ivy League McEducation besides house in Frisco, and no doubt "money" to "invest" that has made you a millionaire, are in fact SOLELY living off what your grand-parents and parents earned, in this weird neo-feudalist system of "money", and have NO compunction about exploiting actual labor of the less fortunate. You'd be homeless without what you were GIVEN. You can't even make this site pay for itself! -- But all that's okay when YOU benefit even without EVER doing any actual labor!

    Your exceeding hypocrisy resulted in new term: you are a Masnocrit.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 25 Sep 2019 @ 7:04am

      Re: Catch-22 for a Troll

      The case would be clear if the tapes were returned as decency requires.

      But the case was quite clear because the tapes were retained by the owner.

      And now you claim that the actual owner of the tapes isn't entitled to use them?

      And the Government should step in and tell him, 'These tapes you have owned for a decade are going to be seized under the laws of decency?' How does that actually work?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2019 @ 7:43am

      Re:

      So you're saying you hate filmmakers now?

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 25 Sep 2019 @ 8:17am

      Re: Catch-22 for a person who expected fairness and honest deali

      [The plaintiff provides no evidence to support his allegations.]

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 25 Sep 2019 @ 9:11am

      Re: Catch-22 for a person who expected fairness and honest deali

      The plaintiff provides no evidence to support his claims.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2019 @ 12:46pm

      Re: Catchy marketing and you could be a hundredaire

      How bout we call that new variety of grapes you’re eating: Ignorant Motherfucker Brand Sour Grapes.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2019 @ 7:19am

    how hard is it to register a copyright in the first place?

    The very last 2 sentences of the article bring up an interesting question.

    go back to a system of formalities, where registration is necessary to even get the copyright in the first place. Then you don't have greedy people showing up years later, demanding a cut of something when they never had any copyright interest previously.

    As an individual, I produce a lot of "original works". Which is to say, I do a lot of writing (mostly boring documents for work). Having never registered a copyright, I don't know the process. I imagine a lot of people who do produce creative works (I'm thinking of those youtube uploaders that actually make their own videos as an example).

    How much does it cost to register a copyright? If it's a few dollars, this might be okay for people making something for fun that later becomes a big hit, but if it's even $100 dollars, it would be out of reach for a lot of young talented people just starting out.

    How complicated is the paperwork?

    Where does one have to go to do it? Can it be done online?

    If it can be done online, how does one present proof (i.e. a physical copy of said work)?

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 25 Sep 2019 @ 7:25am

      Re: how hard is it to register a copyright in the first place?

      Originally, you had to present a completed book to the copyright office for registration. Only books were considered copyright-able. Everything past that has been mission creep. :)

      Nowadays, It's between $35-$55 to register a new work, depending on what you are registering. You can do it by mail or online.

      reply to this | link to this | view in chronology ]

    • icon
      Cdaragorn (profile), 25 Sep 2019 @ 7:47am

      Re: how hard is it to register a copyright in the first place?

      Considering the entire point of Copyright is to allow you to be the only person in all existence that can make money creating something for a limited period in return for you having created and provided it to society, can you give any reason why you should get Copyright on something if you honestly don't think you could make more than $100 selling copies of it during the time you have a forced monopoly on it?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2019 @ 7:49am

    Artists draw comics for marvel and dc , they have zero copyright in spiderman or batman, they get paid per page or per issue of the comic.
    This interviewer was paid to do a job,talk to a celebrity ,she has no copyright on tapes she does not own .
    The simple principal is if someone thinks a work of art ,music,video,is of value
    they should register the copyright .
    Its a waste of time going to court if the item is not registered .

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2019 @ 7:57am

    Let's just have us a reminder of how much shit the Techdirt trolls lost when they were told that yes, you dumbasses, you have to register the copyright on something to have copyright enforced on it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2019 @ 6:11pm

      Re:

      Face it, John Smith's the kind of fucknugget who would gladly charge you for your water bill... without sending you any water. Or the sort of juror who would say that a homeowner is guilty for the injury of a burglar who injured themselves in the house they were trying to rob.

      This throwback had better make this week's Funniest/Insightful post...

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 26 Sep 2019 @ 7:08am

        Re: Re:

        "Face it, John Smith's the kind of fucknugget who would gladly charge you for your water bill... without sending you any water. Or the sort of juror who would say that a homeowner is guilty for the injury of a burglar who injured themselves in the house they were trying to rob."

        More like Blue/Baghdad bob's the kind of guy who'd kill both his parents then plead the judge for leniency on account of being an orphan. And not understand the outrage when he did.

        reply to this | link to this | view in chronology ]

  • identicon
    Yes, I know I'm commenting anonymously, 25 Sep 2019 @ 8:26am

    Audio recordings?

    It sounds like we're discussing author's rights here but there is no author in an interview and if there was a creative expression, it probably is Radner's for coming up with the information.

    But this concerns audio recordings.
    There are a number of copyright-variants on audio recordings that usually belong to the company that pays for the recording.
    S&S could own a few of those rights if they registered them. However, these are easily circumvented by having actors re-record these for the documentary. It probably won' t pay for them to go after those rights.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2019 @ 8:57am

    What if...

    Scenario:

    A movie studio is making a movie. Someone gets their hands on the movie before the editing and post-CGI works is done and puts that video up on YouTube. As the movie is not yet finished it has also not yet been registered with the copyright office. Can the studio sue the person who posted the video?

    And what if some other YouTuber uses portions of that video to make a "review" video, also posted to YouTube. Are they liable in a copyright suit?

    One more: If there is no valid copyright in this work (yet), does the DMCA still apply as usable to have the videos taken down?

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 25 Sep 2019 @ 9:51am

      The studio would probably claim that it can sue for damages over “the illegal distribution of proprietary work product” or something like that. The question of whether a Fair Use defense would work for a YouTube reviewer is academic. And as for the DMCA: The studio could probably claim that, because the footage belongs to said studio, it can use at least the “automatic” copyright granted to all works in a fixed medium to support a DMCA claim.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 25 Sep 2019 @ 9:53am

      Re: What if...

      A movie studio is making a movie. Someone gets their hands on the movie before the editing and post-CGI works is done and puts that video up on YouTube. As the movie is not yet finished it has also not yet been registered with the copyright office. Can the studio sue the person who posted the video?

      First of all, in such cases, you can preregister a copyright: https://www.copyright.gov/help/faq/faq-prereg.html

      Second, upon actual registration you can easily go sue.

      And what if some other YouTuber uses portions of that video to make a "review" video, also posted to YouTube. Are they liable in a copyright suit?

      It depends? If the review is fair use, then no. If it's not, then sure, they can be liable.

      One more: If there is no valid copyright in this work (yet), does the DMCA still apply as usable to have the videos taken down?

      The question has an incorrect premise. There is still a copyright -- it's just not registered yet. The copyright exists from the start, but the law says you can't sue until it's registered. So there is no issue with registering and then suing.

      reply to this | link to this | view in chronology ]

  • identicon
    Anon, 25 Sep 2019 @ 10:41am

    Worse than that...

    Regarding possession. I went to a Science Fiction convention years ago where one artist discussed a real problem with stolen artwork - especially the better known artists. Often, stuff shipped to the publisher (book covers) go missing in the process. For some of them, you can go to their website and see a list of missing works, some of which they don't even have good pictures of. Should an artist be deprived of the opportunity to defend their livelihood because it was stolen? Or is their only recourse to track down the actual physical property. These are people who do works for hire; they don't have the resources of a giant movie studio to chase down thieves and copiers.

    I think more important is to have a definition of what is copyright. People speaking spontaneously - like interviews (or rants that go viral) should not have a copyright claim. Written speeches being read, comedy routines, other practiced performances- yes, copyright.

    reply to this | link to this | view in chronology ]

  • icon
    Wendy Cockcroft (profile), 26 Sep 2019 @ 5:57am

    Copyright is in the hand of the beholder

    For those of you who think Hillary Johnson was unfairly treated by an unfair system, consider this: you also like to claim that the heirs to the estate of a deceased creative have the right to continue to make money from sales of the creative's works.You also claim that the item used to do any recording, e.g. cameras, belonging to an individual automatically cede any copyright interest to that individual (remember the Monkey Selfie case?). Bearing all of that in mind, let's take it from the top.

    1). Radner was a comedian and actress; an actual creative. Johnson is a journalist, grifting (per your logic) off of Radner's creativity. No Radner, no subject. Any copyright interest, per your logic, is Radner's, not Johnsons's, otherwise any journalist interviewing a subject for a newspaper, or indeed a biography, would own the copyright on each interview. Imagine the licensing issues that would create!

    2). If Radner's brother had the post-interview tapes, that means Johnson had ceded ownership of the tapes to Radner, who then left them to her brother. If Radner's estate (in the person of her brother) OWNED the tapes, Johnson has no more claim therein than Naruto the monkey does.

    3). Johnson no doubt resorted to the sweat o' the brow argument. Okay, fine. If that's the case, so does Radner. She not only took part in the interview, she did this while suffering from the breast cancer that killed her. Now ratio the work; who did most of the talking? Johnson asked questions, but I'd argue Radner did more actual talking by answering the questions -- which were about her stage and screen work. If we were to split the baby by counting each word, any remuneration due Johnson would be tiny compared to Radner's estate.

    In any case she had no legally provable claim on the tapes as she not only didn't own or possess them, she had not registered the copyright she was claiming against. tl:dr; Radner made the tapes AND owned them, ergo her copyright. Case dismissed.

    reply to this | link to this | view in chronology ]


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