Articles

Monica Lewinsky's Illicit Fixation: Scandal Tests the Limits of Copyright Law

By Robert Clarida

Mar. 1, 1998

Imagine you're a publisher who's just been offered the deal of a lifetime: Monica Lewinsky is prepared to grant you the exclusive right to publish the transcripts of her infamous conversations with Linda Tripp. Moreover, the offer also includes the exclusive right to reproduce Ms. Lewinsky's voice as embodied on the original FBI sound recordings, opening up a world of CD-ROM possibilities and guaranteeing an unforgettable books-on-tape version. Is this offer too good to be true?

The answer is probably yes, because she has no exclusive to sell. The Monica Lewinsky tapes, and the (reportedly) salacious tales embodied therein, are most likely in the public domain even though no one outside the grand jury room has ever heard them. While the issue is not entirely free from doubt, both the transcripts and the sound recordings would appear to be statutorily ineligible for copyright protection, at least with respect to Ms. Lewinsky's contributions. Further, any significant protection which might exist under state law is arguably unavailable to Ms. Lewinsky, given the facts as they have so far been reported.

As to the transcripts, Ms. Lewinsky is plainly the author of her own remarks for copyright purposes, and can thus claim ownership of whatever copyright there might be in those words. See Copyright Office Compendium II at § 317 (1988); Suid v. Newsweek, 503 F. Supp. 146 (D.D.C. 1980) (participants in interviews own copyright in their remarks).

It is also safe to assume that Ms. Lewinsky's remarks on the tapes are both original and creative enough to be copyrightable. The problem lies in the circumstances of the recording: the conversations were not fixed in a tangible medium with Ms. Lewinsky's authorization. Under § 101, a work must be fixed "by or under the authority of the author" in order to qualify for copyright protection. Ms. Lewinsky's "work" was not.

Can Ms. Lewinsky now retroactively deem the fixation to have been authorized? Not likely. Although two courts have assumed in footnote dicta that an infringement might be possible in connection with a work whose initial fixation was unauthorized, Rotbart v. J.R. O'Dwyer Co., 34 U.S.P.Q. 2d 1085, n.1 (S.D.N.Y. 1995) and Phillips v. INC. Magazine, 1987 U.S. Dist. LEXIS 1948, n.1 (E.D. Pa. Mar. 18, 1987), no court has ever expressly permitted an author to authorize a bootleg recording after the fact.

In fact, recent legislative efforts to address record and music video piracy seem to confirm that while several other types of retroactive authorial "consent" are acceptable (see, e.g., cases construing the writing requirements in § 101(2) and § 204), an initially illicit fixation probably cannot be cured by ex post facto authorization. In the 1994 GATT-TRIPS amendments to the Copyright Act, Congress created a new section (§ 1101) to provide remedies for the unauthorized fixation or reproduction of a "live musical performance." One who commits such acts under § 1101 "shall be subject to the remedies provided in sections 502 through 505 to the same extent as an infringer of copyright" (emphasis added).

With this oddly precise language Congress appears to be saying that one who secretly records an otherwise unfixed performance is not in fact a copyright infringer, presumably because there is no copyright to infringe. The new section does not challenge the basic proposition that such fixations are incapable of supporting a copyright; indeed, it reinforces that conclusion by establishing an alternative basis for liability. If the author of an unfixed work could belatedly declare any bootleg fixation to have been "authorized," this new legislation would be superfluous.

Even if the illicit-fixation issue dooms Ms. Lewinsky's claim to own her words, could she at least claim that her "performance" was protectable under the GATT-TRIPS amendments and thus prevent others from selling copies of the sound recordings? Clearly not, because the 1994 amendments only protect against the bootlegging of a "live musical performance." While the exact nature of those famous Lewinsky/Tripp conversations remains to be seen, it seems safe to assume that they were not musical performances.

Under existing federal law, then, Ms. Lewinsky simply has no exclusive rights, either as an author of the texts or as a performer on the recordings. Anyone who lawfully obtains a tape or a transcript has as much right to sell copies as she does. (If Ms. Lewinsky tries to exploit any illegally-acquired tapes, of course, she may have yet another criminal charge to worry about.)

Furthermore, even if Ms. Lewinsky enjoyed some rights as a performer on the recordings, she could not unilaterally exploit those rights. Assuming Ms. Tripp actually "authored" the sound recordings in some sense—and she has a better claim to that status than does Ms. Lewinsky—Ms. Lewinsky could assert at best that she and Ms. Tripp were joint authors, either of whom could exploit their joint creation. Such a claim would surely fail, but without it Ms. Lewinsky would be unable to grant any rights in the tapes, or even her own portions of the tapes, without Ms. Tripp's consent.

Can state law afford Ms. Lewinsky an alternative means of asserting any exclusive rights? The 1976 House Report, like § 301(b)(1) of the current Act, explicitly condones state law protection for unfixed works such as "an extemporaneous speech, [or] 'original works of authorship' communicated solely through conversations." House Report at 131. Such works are "not affected by the preemption of § 301, and would continue to be subject to protection under state statute or common law until fixed in tangible form [with the author's consent]." Id.

But just because a state could theoretically protect Ms. Lewinsky's remarks does not mean that it would do so under the facts at issue. Indeed, in the leading case of Estate of Hemingway v. Random House, 296 N.Y.S.2d 771, 779 (N.Y. 1968), the New York Court of Appeals held that common law copyright will only rarely extend to remarks uttered in ordinary conversation.

Instead, "it would at the very least be required that the speaker indicate that he intended to mark off the utterance in question from the ordinary stream of speech, that he meant to adopt it as a unique statement and that he wished to exercise control over its publication." Id. Where the speaker does not separate the utterance from "the ordinary stream of speech," as perhaps Ms. Lewinsky did not, "there should be a presumption that the speaker has not reserved any common law right unless the contrary strongly appears." Id.

Under Estate of Hemingway even the sensitive, private conversations at issue here could thus be insufficient to create state law rights in an unfixed "literary work," for the simple reason that Ms. Lewinsky neither conceived nor presented her remarks to Ms. Tripp as a "work" of any kind. Compare Jenkins v. News Syndicate Co., Inc., 219 N.Y.S.2d 196 (Sup. Ct. 1926)(conversation describing proposed newspaper articles held protectable, because "defendant sought to buy the literary property from plaintiff")(emphasis added) with Current Audio Inc. v. RCA Corp., 337 N.Y.S.2d 949 (Sup. Ct. 1972) (Elvis Presley press conference remarks not protectable because "Mr. Presley was in no way performing," and spontaneous speech "is of a wholly different character than the delivery of a formal speech or address.")

It could certainly be argued that Ms. Lewinsky's talks with Ms. Tripp, though not formal "works," were in no sense ordinary speech either, and that Lewinsky sought to "exercise control over publication" by swearing her confidante to secrecy, as she presumably did. But an agreement to share secrets and hold them in confidence, if one existed, arguably gives Ms. Lewinsky no more than a right to prevent Ms. Tripp from exploiting the conversations, as the plaintiff had in Jenkins, and not a common-law copyright enforceable against the world.

As a final approach, Ms. Lewinsky might move back to California and claim that the unauthorized use of her voice was a violation of her right of publicity, specifically § 3344 of the California Civil Code. This statute applies only to uses of a person's voice in "products, merchandise or goods," however, or in advertising; it would seldom if ever apply to a publication addressing current events. Unlike copyright, the right of publicity is subject to a jealously-guarded First Amendment exception which would almost certainly be invoked by any non-frivolous user of Ms. Lewinsky's identity.

All in all, intellectual property law appears poised to add insult to Ms. Lewinsky's injury. Little did she know when she confided in Ms. Tripp that an unseen FBI recording crew would not only ruin her life, but would also prevent her from reaping the full measure of profit from her strange, sad story. In this day and age, when a seven-figure book deal is the presumed birthright of anyone who manages to survive a humiliating self-inflicted scandal, that's practically un-American.

©1998 Cowan Liebowitz & Latman, P.C.

Originally printed in the March, 1998 issue of IP Strategist

For more information on this or other copyright issues,
contact Robert W. Clarida at (212) 790-9266.

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