Month: April 2023

Categories
Copyright

For You and Me or Private Property?: Evaluating the Copyright Claim in Woody Guthrie’s “This Land Is Your Land”

By Jason Lee Guthrie

For the Center for Intellectual Property x Innovation Policy blog, in fulfillment of obligations for the Thomas Edison Innovation Law and Policy Fellowship

Al Aumuller, Woody Guthrie, half-length portrait, facing slightly left, holding guitar 1943

In early 1940, Woody Guthrie was on the road to New York City, and he was tired. Tired of traveling. Tired of the cold. Tired of having to hobo and hitchhike his way across America (again). He nearly froze to death in a Pennsylvania snowstorm along the way. He eventually made it to New York, though, alive but exhausted.

He was also tired of hearing Kate Smith’s patriotic anthem “God Bless America” on the radio. It had been an instant hit since its debut more than a year prior, but its ubiquity bothered Guthrie as did its use of religious imagery to inspire nationalist feeling. He was so tired of hearing it that when he finally got to New York he wrote his own song in response. Entitled “God Blessed America,” the song’s first three verses were an artistic rendering of his recent travels across “golden valleys” and “diamond deserts.” The fourth verse shifted somewhat in tone, though, and perhaps revealed something about Guthrie’s philosophical outlook:

Was a big high wall there / That tried to stop me
A sign was painted / Said: Private Property
But on the back side / It didn’t say nothing
God blessed America for me

“This Land” in Court

This song would eventually replace the line “God blessed America for me” with “This land was made for you and me” and change its title to “This Land Is Your Land.” The song’s development has been discussed in previous scholarship.[1] Here, I’ll focus on revisions only insofar as they relate to its copyright claim. The validity of this claim has received significant scholarly attention in recent years and even spilled over into public discourse as the copyright has been challenged in court. Research that I conducted while completing a Thomas Edison Innovation Law and Policy Fellowship revealed important details that can reframe scholarly discourse about the copyright in “This Land,” and may inform legal arguments if it is challenged again.[2]

As of this writing, the most recent litigation occurred in 2016 when the law firm of Wolf Haldenstein Adler Freeman & Herz filed a complaint on behalf of the band Satorii against The Richmond Organization (TRO), current publishers of “This Land” and other Guthrie works.[3]  In 2015, the same firm successfully litigated a high profile case against Warner/Chappell Music, Inc. that established “Happy Birthday” in the public domain.[4] Buoyed by this success, the firm hoped to similarly invalidate the copyright claim in both “This Land” and the civil rights anthem “We Shall Overcome.”[5] While the cases involving “Happy Birthday” and “We Shall Overcome” were relatively clear-cut, the facts of the copyright claim in “This Land” are more complicated and warrant an in-depth look.

Writing – and Protecting – “This Land”

Having a song undergo several rounds of revision was a normal part of Guthrie’s creative process. Also common to Guthrie’s process was the practice of pairing original lyrics with an established melody.[6] “This Land” is an example of this practice as the melody line and chord progression are based on an old Carter Family song entitled “Little Darling, Pal of Mine,” which itself was based on a gospel hymn entitled “Oh My Loving Brother.”[7]

The original lyric sheet for “This Land” evidences its evolution as lines from the first draft are crossed out and replaced with new ones.[8] The earliest known recording of the song was made in the mid-1940s with producer Moe Asch, and by that time the references to “God Bless America” had been dropped.[9] It was recorded again in the late 1940s and a third time in 1951.[10] As initiates into the byzantine world of music copyright will know, however, copyright in these specific sound recordings is distinct from a copyright in the words and music of the song itself.

“This Land” debuted on the radio in the mid 1940s as merely one song in Guthrie’s vast repertoire. One of the ways that musical acts on the radio generated income at this time was to sell songbooks to listeners that contained the sheet music for tunes they heard on the air.[11] Guthrie had been creating such songbooks for years by this point, and in 1945 he created one that included “This Land” along with other titles. Mimeographed from a handmade manuscript and advertised at a selling price of 25 cents, this document included an explicit copyright claim on both its cover and first page.[12] Such a notice met the basic requirements for claiming copyright at the time. Moreover, Guthrie was generally aware of these requirements and had made efforts to comply with them before.[13]

Card Catalog Entry for Woody Guthrie, “This Land is Your Land,” March 30, 1956

Yet, “This Land” was not officially registered with the Copyright Office until 1956. By this time, Guthrie was profoundly debilitated by Huntington’s Disease. Management of his affairs was handled by his second wife, Marjorie Mazia Guthrie, and her designees. It is possible that when they submitted the application for copyright registration they were unaware of the songbook’s existence. In the mid-1950s, “This Land” was just beginning to achieve the popular recognition it would eventually enjoy, and a hastily drawn songbook he had made a decade prior would likely not even register on their radar as they worked to untangle the myriad contracts and assignments of rights Guthrie had signed since he arrive in New York.[14]

The question of the copyright claim’s legitimacy hangs on a comparative evaluation of the 1945 manuscript and the 1956 registration. Records in the archives of the Woody Guthrie Center demonstrate that the successive entities who managed the copyright, including TRO, believed the 1956 registration to be valid.[15] Yet, when the copyright was challenged in 2004, the Electronic Frontier Foundation (EFF) discovered the 1945 manuscript and positioned it as evidence of “first publication.”[16] That case, like the one in 2016, eventually settled without ruling on the validity of the copyright claim, but the question of first publication will be important if suit is filed again in the future. TRO correctly filed for an extension of the 1956 registration in the twenty eighth year timeframe required at the time (i.e. pre-1976 Copyright Act). If the copyright clock legally began with the publication of the 1945 manuscript, however, the extension window was missed and the song would have fallen into the public domain twenty eight years later in 1973.

Conclusion

Ultimately, if a ruling is made, it will come down to a judge’s decision on whether the 1945 manuscript should count as first publication. When I began this research, I had hoped to produce a definitive recommendation similar to what Robert Brauneis was able to do with his work on “Happy Birthday.”[17] While I am not able to say definitively whether or not the copyright claim in “This Land” is valid, I do believe the case for its validity is stronger than many previous commentators have suggested.

It does not take a professional musicologist to note several differences in the sheet music from 1945 and 1956. They are in different keys and different time signatures. The melodies notated are both recognizable as “This Land,” but they have differences that even an untrained ear can easily distinguish. There are differences in the lyrics as well. For example, the 1945 manuscript has “Canadian Mountain” in place of the more familiar “Redwood Forest” in the first verse, and that difference is just one of many. Even the title on the 1945 manuscript is simply “This Land” rather than the full “This Land Is Your Land.” These discrepancies suggest a strong case that the manuscript accompanying the 1956 registration can reasonably be considered an updated arrangement or version deserving of its own unique copyright. If a judge were to rule the 1956 registration valid, then the current copyright claim would stand as legitimate.

The stakes of “This Land”’s copyright legitimacy are not insignificant. Nora Guthrie, Woody’s daughter and President of Woody Guthrie Publications, has stated explicitly why the claim is still asserted: “Our control of this song has nothing to do with financial gain. . . . It has to do with protecting it from Donald Trump, protecting it from the Ku Klux Klan, protecting it from all the evil forces out there.”[18] In my research, I did not find any scholarship that advocated for “This Land” to become public domain that also seriously addressed the ramifications of that outcome. The copyright claim may be disputed, but it is the only thing currently keeping the song from being appropriated into any number of commercial or political purposes that would have been anathema to Guthrie. It would be ideal, perhaps, if there were a mechanism other than copyright to restrict harmful use of “This Land,” but absent such a mechanism copyright is, in this case, the only thing helping to prevent appropriation and commodification.

References

[1] Most biographies of Guthrie have a section that covers the composition of “This Land Is Your Land.” See Robert Santelli, This Land Is Your Land: Woody Guthrie and the Journey of an American Folk Song (Philadelphia: Running Press, 2012) for an accurate yet accessible narrative. See John Shaw, “The Textual History of ‘This Land Is Your Land” in This Land That I Love: Irving Berlin, Woody Guthrie, and the Story of Two American Anthems (New York: PublicAffairs, 2013), 211-218 for a more detailed analysis.

[2] Jason Lee Guthrie, “This Copyright Kills Fascists: Debunking the Mythology Surrounding Woody Guthrie, ‘This Land is Your Land,’ and the Public Domain,” Information & Culture 58, no. 1 (2023): 17-38.

[3] Plaintiff’s Complaint, ECF No. 6, Saint-Amour et al v. The Richmond Organization, Inc. (TRO Inc.), June 15, 2016, (S.D.N.Y. 2016) (No. 16 Civ. 4464).

[4] Christine Mai-Duc, “All the ‘Happy Birthday’ song copyright claims are invalid, federal judge rules,” Los Angeles Times, September 22, 2015, https://www.latimes.com/local/lanow/la-me-ln-happy-birthday-song-lawsuit-decision-20150922-story.html.

[5] Niraj Chokshi, “Who Owns the Copyright to ‘This Land Is Your Land’? It May Be You and Me,” New York Times, June 17, 2016, https://www.nytimes.com/2016/06/18/business/media/this-guthrie-song-is-your-song-a-lawsuit-claims.html

[6] See, for example, Alonzo M. Zilch’s own Collection of Original Songs and Ballads (Songbook), April 1935, Item 87, Woody Guthrie Notebooks (Diaries), Woody Guthrie Center Archives, Tulsa, Oklahoma (hereafter WGC), Guthrie’s earliest known songbook, which included the quote: “At times I cannot decide on a tune to use with my words for a song. Woe is me! I am then forced to use some good old, family style tune that hath already gained a reputation as being liked by the people.”

[7] Ed Cray, Ramblin’ Man: The Life and Times of Woody Guthrie (New York: W. W. Norton & Company, 2004), 165-166.

[8] https://www.rollingstone.com/wp-content/uploads/2022/02/This-Land-v1.jpg?w=1280

[9] Woody Guthrie, “This Land Is Your Land (Alternate Version),” c. mid-1940s, on Woody at 100: The Woody Guthrie Centennial Collection, Smithsonian Folkways, 2012.

[10] See Woody Guthrie, “This Land Is Your Land”, c. late-1940s, on This Land Is Your Land: The Asch Recordings, Vol. 1, Smithsonian Folkways, 1997; and Woody Guthrie, “This Land Is Your Land,” 1951, on This Land Is My Land: American Work Songs: Songs to Grow On, Vol. 3, Smithsonian Folkways Archival, 2007.

[11] Peter La Chapelle, I’d Fight the World: A Political History of Old-Time, Hillbilly, and Country Music (Chicago: The University of Chicago Press, 2019), 165-166.

[12] “‘Ten Songs of Woody Guthrie’ 1945 Pamphlet,” Electronic Frontier Foundation, June 29, 2007, https://www.eff.org/document/ten-songs-woody-guthrie-1945-pamphlet.

[13] See, for example, Copyright Office to Woody Guthrie, September 22, 1937, Series 4, Box 6, Folder 3, Maxine Crissman “Woody and Lefty Lou” Radio Show Collection, WGC; and Copyright Office to Woody Guthrie, n.d., Series 4, Box 6, Folder 4, Maxine Crissman “Woody and Lefty Lou” Radio Show Collection, WGC.

[14] Joe Klein, Woody Guthrie: A Life, 2nd ed. (New York: Random House, 1999), 430-432.

[15] See, for example, Harold Leventhal to Woody Guthrie, August 27, 1956, Series 2, Box 2, Folder 13, Woody Guthrie’s Correspondence Collection, WGC; Harold Leventhal to Cisco Houston, November 25, 1958, Series 3, Box 1, Folder 10, Harold Leventhal Collection, WGC; Al Brackman to Harold Leventhal, January 13, 1959, Series 1, Box 1, Folder 16, Harold Leventhal Collection, WGC; Jay Mark to Harold Leventhal, December 7, 1959, Series 3, Box 1, Folder 8, Harold Leventhal Collection, WGC; Al Brackman to Harold Leventhal, December 22, 1959, Series 1, Box 1, Folder 16, Harold Leventhal Collection, WGC; and Howard S. Richmond to Harold Leventhal, December 28, 1959, Series 3, Box 1, Folder 8, Harold Leventhal Collection, WGC.

[16] Fred von Lohmann, “This Song Belongs to you and Me,” Electronic Frontier Foundation, August 24, 2004, https://www.eff.org/deeplinks/2004/08/song-belongs-you-and-me; and Parker Higgins, “This Song (Still) Belongs to You and Me,” Electronic Frontier Foundation, February 2, 2015, https://www.eff.org/deeplinks/2015/02/song-still-belongs-you-and-me.

[17] Robert Brauneis, “Copyright and the World’s Most Popular Song,” Journal of the Copyright Society of the U.S.A 56, no. 2–3 (Winter-Spring 2009): 335–426.

[18] Ben Sisario, “A Fight to Make ‘We Shall Overcome’ and ‘This Land is Your Land’ Copyright Free,” New York Times, July 12, 2016, https://www.nytimes.com/2016/07/13/business/media/happy-birthday-is-free-at-last-how-about-we-shall-overcome.html. For an interesting account of the relationship between Woody Guthrie and Donald Trump’s father Fred, see Will Kaufman, “Woody Guthrie, ‘Old Man Trump’ and a real estate empire’s racist foundations,” The Conversation, January 21, 2016, https://theconversation.com/woody-guthrie-old-man-trump-and-a-real-estate-empires-racist-foundations-53026. For a recent example of appropriation, see Daniel Desrochers, “Woody Guthrie’s family to Josh Hawley: Stop using his lyrics, ‘insurrectionist’,” The Kansas City Star, March 13, 2023, https://www.kansascity.com/news/politics-government/article272998185.html.

Categories
Pharma

C-IP2 Statement on Interactions between Courts and the FDA

a gavel lying on a table in front of booksCourts have recently questioned Food and Drug Administration (FDA) determinations. The FDA is the administrative agency whose job is to evaluate scientific data to determine if a drug is safe and effective enough to be approved, and post-approval, to continue to evaluate such data to determine if a drug should remain available.  

Generally, the most expensive part of bringing a drug to market is the clinical trials necessary to obtain FDA approval. Courts substituting their evaluations of scientific data and overruling the FDA would harm innovation, future pharmaceutical research, and funding. While courts can and should review agency policies and decisions under the administrative procedures act, courts should not substitute their opinions for expert agency decisions. 

Categories
Copyright Infringement Journalism

Trump Interview Lawsuit Exposes Uncertainty in a Corner of Copyright Law

Will Donald Trump’s lawsuit against Bob Woodward and publisher Simon & Schuster[1] finally resolve the question of who owns the copyright over interviews? While the complaint has other challenges, it calls out a surprisingly muddled and unresolved area of copyright law.

One might assume that the copyright ownership of interviews is a settled question. But two major questions have never been resolved:

    1. Are interviewee’s responses to an interviewer’s questions copyrightable?
    2. If they are, then who owns that copyright?

C-IP2 2022-2023 Edison Fellow Mary Catherine Amerine presciently identified and analyzed these issues in a 2017 article in the Marquette Intellectual Property Law Review.[2] We relied on her article and current expertise in producing this blog post.

Courts were considering the first question as early as the 1960s, when the estate of Ernest Hemingway claimed that Papa Hemingway, a book that included lengthy quotes from conversations between Hemingway and an interviewer, infringed the estate’s copyright over the interviews themselves.[3] The court ruled on an implied license theory and thus dodged the copyrightability of Hemingway’s conversational statement as captured in an audio recording. In dicta, the court speculated that an interviewee would need to make some clear statement bracketing parts of their extemporaneous responses to an interviewer’s questions “to mark off the utterance . . . from the ordinary stream of speech, . . . to adopt it as a unique statement and that he wished to exercise control over its publication.”[4]

A decade later, a different court employed different reasoning to rule against Jerry Falwell’s copyright infringement claims for republication of interviews in Penthouse Magazine.[5] Whereas the Hemingway dicta suggests that copyrightability turns on an objective manifestation by the interviewee that a particular oral statement has the requisite authorial intent and thus is not mere extemporizing, the Falwell holding turns on whether the content of the particular oral statement is “concrete” enough to indicate authorial intent.[6] This holding then curiously (albeit perhaps unintentionally) imports patent law’s exclusion of “abstract ideas” from patent eligibility into copyright law: “However different or unique plaintiff’s thoughts or opinions may be, the expression of those opinions or thoughts is too general and abstract to rise to the level of a literary or intellectual creation . . . .”[7]

Courts have followed this reasoning ever since, distinguishing off-the-cuff extemporizing typical of unrehearsed oral responses to media questions from the sort of carefully planned oral statements of executives of publicly traded companies on analysts’ earnings calls.[8] At the same time, some courts have upheld copyright in the interviewer for interview quotes as a compilation (which avoids ownership of individual quotations).[9]

While the exact contours of whether there is copyright in any particular interview source material are still not clear, the question of who holds that copyright, should it exist, is even less certain. Trump’s Complaint requests a declaratory judgment for his ownership of the entirety of the interview’s sound recordings,[10] audiobook, and all derivative works, or, in the alternative, “copyright in his responses . . . . ”[11] Trump’s ownership of the entire copyright in the interviews would be unprecedented; no court has held that an interviewee could own the copyright over an entire interview. But the question of ownership of the copyright to an interview—in whole or in part—turns on three other questions:

    1. Can the interviewer seek to claim copyright of all contents of the interview on the theory that they directed and recorded the interview?
    2. Can neither party own copyright to the other’s statements because they did not create or make them, and hence each owns only their own contribution (“divided copyright”)?
    3. Should the entirety be viewed as a work of joint authorship by the interviewer and interviewee?

The court in Suid v. Newsweek Magazine, addressing a reporter’s attempt to claim the entirety of copyright in interviews he conducted, adopted “B” and divided copyright: “The author of a factual work may not, without an assignment of copyright, claim copyright in statements made by others and reported in the work because the author may not claim originality as to those statements.”[12] By contrast, the court in Foundation for Lost Boys v. Alcon Entertainment, LLC was inclined to adopt “C” when it held that interviewee plaintiffs had pled facts sufficient to support a finding of joint authorship with interviewer defendants. Ruling on defendants’ motion to dismiss, the court rejected the argument that plaintiffs’ interview responses were not copyrightable, as telling “personal stories in response to questions designed to elicit material” likely rose to the required level of creativity. Further, the court held that “[T]he interplays between prompts and responses in the Interviews necessarily merged the respective contributions of the [Plaintiffs and interviewers] into inseparable parts of a whole,” even though the refugees had not specifically asserted that they had intended to create a joint work.[13] However, the case settled, leaving the interview copyright ownership question unanswered.

A final wrinkle in interview copyright cases arises when the party asserting copyright does not have physical custody of the interview materials and so cannot register the copyright with the U.S Copyright Office. Parties in similar circumstances have attempted to skirt this issue by positioning their claims as declaratory judgment actions rather than directly claiming infringement, as copyright registration is a requirement for filing a copyright infringement lawsuit. These declaratory judgment actions have generally requested that the court grant an injunction requiring defendants to provide copies of the work in question to allow the plaintiffs to register their copyright. So far, courts have been divided on whether this strategy is a permissible circumvention of the copyright registration requirement.

In Johnson v. Magnolia Pictures LLC, the court granted a motion to dismiss by a producer who created a movie about comedian Gilda Radner based on recorded interviews found in an attic. The court ruled that a declaratory judgment is not an independent cause of action that could survive without the underlying copyright infringement claim, which was itself dismissed for lack of copyright registration.[14] Similarly, in Whistleblower Productions, LLC v. St8cked Media LLC, the court dismissed a copyright infringement case because even as plaintiff claiming ownership of the interview footage used to make a documentary, they did not possess the footage and hence had been unable to register the copyrights.[15] But in Lost Boys, the Sudanese refugees case, the court stated that if the refugees proved facts sufficient to show copyright infringement in a trial on the merits, then they would be entitled to an injunction compelling defendants to turn over the interview materials needed for the plaintiffs to register the copyrights.[16]

Trump’s lawsuit faces a similar registration challenge: the Complaint conspicuously fails to plead that Trump has a copyright registration. According to Trump’s attorney, he was unable to register the copyright because he does not have the interview tapes.[17] Thus, similar to the cases above, he does not plead copyright infringement directly, but instead seeks a declaratory judgment that he owns the interview copyright, in whole or in part. However, distinct from the above cases, Trump does not currently seek an injunction to obtain the interview materials copyright registration. Further, because Trump has filed in the U.S. District Court for the Northern District of Florida, where no local or circuit decisions bind the court on these issues, it is unclear whether the court will allow the suit to proceed as an action for declaratory judgment, or whether the lack of copyright registration will be fatal.

If Trump’s suit survives the likely motion to dismiss for lack of copyright registration, then the court would still need to decide whether to find no copyright, divided copyright, sole copyright owned by either Trump or Woodward (or Simon & Schuster), or joint authorship. Trump has already sought to reject the latter, pleading in the Complaint that “President Trump never sought to create a work of joint authorship, and in the hours of the Interviews, there is neither allusion to nor confirmation of such.”[18] The Lost Boys decision indicates that this lack of intent does not necessarily preclude joint authorship, as interview questions and responses may be “inseparable or interdependent parts” that create a “unitary whole.”[19] However, this is the only case that has directly addressed the possibility of joint authorship of an interview in these circumstances. It remains to be seen whether the court would find this reasoning persuasive or would return to earlier decisions to hold either that interview responses cannot be copyrighted at all, or that interview questions and responses are protected by two separate copyrights owned by the interviewer and interviewee, respectively.[20]

Regardless of the outcome of Trump’s case, this high-profile lawsuit has made it impossible to ignore the unsettled nature of a copyright question that has been long overlooked.

[1] Trump v. Simon & Schuster, Inc., Case No. 3:23-cv-02333-RV-ZCB (Dkt. 1, Complaint, Jan. 30, 2023).

[2] 21 Marq. Intell. Prop. Rev. 159 (2017) available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2878800. Drafts of the article won both AIPLA’s Robert C. Watson National Writing Award and the Virginia State Bar Intellectual Property Section’s Student Writing Competition. Amerine is currently an associate at Shearman & Sterling.

[3] Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250 (N.Y. 1968). While this and the Falwell case discussed below were brought under common-law copyright, the courts’ analyses are still relevant to the copyright of interviews under the Copyright Act of 1976.

[4] Id. at 256.

[5] Falwell v. Penthouse Intern., Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

[6] “There is nothing concrete which distinguishes his particular expression of his ideas from the ordinary.” Id. at 1208.

[7] Id. Notwithstanding, the court also relied in part on the reasoning of the Hemingway dicta: “the actual dialogue, including the unprepared responses of plaintiff, was spontaneous and proceeded in a question and answer format. There is no defined segregation, either by design or by implication of any of plaintiff’s expressions of his thoughts and opinions on the subjects discussed which would aid in identifying plaintiff’s purported copyrighted material.”  Id.

[8] Compare Taggart v. WMAQ Channel 5 Chicago, No. 00-4205-GPM, 2000 WL 1923322 at *5 (S.D.

Ill. Oct. 30, 2000) (“comments during the interview were unprepared and spontaneous responses,” and therefore “simply do not rise to the level of a literary or intellectual creation enjoys the protection of the copyright law.”) with Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 808 F. Supp. 2d 634, 638 (S.D.N.Y. 2011) (oral statements of executives “possess the requisite creativity to qualify for copyright protection.”).

[9] Quinto v. Legal Times of Washington, Inc., 506 F. Supp. 554 (D.D.C. 1981).

[10] The question of sound recordings adds a layer of complexity beyond the scope of this post. It will be addressed in a subsequent post.

[11] Trump v. Simon & Schuster, supra Note 1 at ¶¶ 64-65.

[12] Suid v. Newsweek Mag., 503 F. Supp. 146, 147 (D.D.C. 1980).

[13] Foundation for Lost Boys v. Alcon Ent., LLC,  No. 1:15-CV-00509-LMM, 2016 WL 4394486 at *2-4 (N.D. Georgia Mar. 22, 2016).

[14] Johnson v. Magnolia Pictures LLC, No. 18 CV 9337, 2019 WL 4412483, at * 1-2 (S.D.N.Y. Sept. 16, 2019) (reconsideration denied, Johnson v. Magnolia Pictures LLC, No. 18 CV 9337, 2019 WL 5569610 (Oct. 29, 2019). The interviews formed the basis of the film Love, Gilda.

[15] Whistleblower Prods., LLC v. St8cked Media LLC, No. 18-CV-5258, 2019 WL 3082482 (E.D.N.Y. July 15, 2019)

[16] Found. for Lost Boys and Girls of Sudan, Inc. et al v. Alcon Ent. at *9.

[17] Kyle Jahner, Trump’s Woodward Lawsuit Called Flawed, Intriguing by IP Lawyers, Bloomberg News, Feb. 3, 2023, available at https://news.bloomberglaw.com/ip-law/trumps-woodward-lawsuit-called-flawed-intriguing-by-ip-lawyers#:~:text=Trump’s%20Woodward%20Lawsuit%20Called%20Flawed%2C%20Intriguing%20by%20IP%20Lawyers,-By%20Kyle%20Jahner&text=Former%20President%20Donald%20Trump’s%20copyright,property%20rights%20over%20recorded%20interviews.

[18] Trump v. Simon & Schuster, supra Note 1 at ¶ 47.

[19] Found. for Lost Boys and Girls of Sudan, Inc. et al v. Alcon Ent. at *8.

[20] A fourth alternative, not yet adopted by courts but proposed by Amerine in her article, is that the journalist own copyright over the entire interview as the “mastermind” who controls the project and can be considered the “author” under the Ninth Circuit’s authorship analysis in Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000). Supra note 2 at 182-184.