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

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.

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