from the suing-in-the-rain... dept
Another day, another story of copyright being used for censorship, rather than as an incentive to create. Here's the headline:
Gene Kelly's widow is suing to stop an academic book exploring various interviews that were done over the decades with the famed actor/dancer. And
here's the lawsuit, in which Kelly's widow, Patricia Ward Kelly, who was married to Gene Kelly for the last seven years of his life, claims that she holds the copyright on
every interview that Kelly ever did. From the lawsuit:
The spoken and written words by Gene Kelly during all of his interviews ("Interviews") are original works of authorship and are copyrightable subject matter under the laws of the United States.
Prior to and during Gene Kelly's marriage to Plaintiff, which lasted until his death in 1996, Plaintiff was designated as Mr. Kelly's official biographer and archivist of his materials, including letters, interviews, manuscripts, holograph notes, photographs, memorabilia, and related items. Plaintiff is the sole, official authority entrusted by Gene Kelly to promote and protect his legacy. In these capacities, Plaintiff documented his life and work, and collected, organized and catalogued his materials.
including the Interviews, so that these materials could be used to write books, create online
platforms, and produce films, educational talks and shows, so as to provide an accurate
record of Gene Kelly's life and work.
In accordance with Gene Kelly's Will and the Eugene C. Kelly Family Trust, Plaintiff was bequeathed and succeeded to the rights to Gene Kelly's
intellectual property, including the copyrights in and to the Interviews.
Now, the legal issues here are at least somewhat nuanced. The question of who actually holds the copyright in an interview is actually a
hotly debated topic in
some copyright circles, and the answer is not as clear or as simple as you might think (or as it probably ought to be). Remember, of course, that the law is pretty explicit that copyright is given to whoever
fixes the interview into a tangible medium. So, in most cases, it would seem that whoever is recording/transcribing/publishing the interview likely holds the copyright in it.
That's what a district court in Southern Illinois found in the
Taggart v. WMAQ case back in 2000. There, a court found that the interviewer held the copyright, rather than a prison inmate who had been interviewed by the local TV station and didn't like how it came out. The inmate argued that his responses were a "performance" that allowed him to get copyright protections, but the court rightly rejected this:
Plaintiff's reading of copyright law to protect his
interview comments with WMAQ as a work of authorship
conflicts with the “most fundamental axiom of copyright
law [that no] author may copyright his ideas or the facts he
narrates.”
But not all cases have turned out that way. There's a case from 1980 that suggests there
might be a copyright interest in the interview that could be held by the interviewee, but the case did not turn on that issue and the court went no further. There's another case that
suggests each individual in an interview retains a copyright interest in their portion of the interview (so just the questions or just the answers). And then some argue that the entire interview is a "joint work" of authorship, where both parties hold the copyright jointly. Frankly, I think that copyright law is pretty clear that the Taggart ruling is technically correct, that the ownership goes to whoever does the fixing. But, with weird rulings lately about "performances" who knows how courts will rule.
Frankly, it's a little amazing that the issue hasn't been more widely litigated. But here's a chance to do so, though I suspect it may get tossed pretty quickly, because the lawsuit, at least, doesn't even bother to specify what specific works are being infringed, or even hint at whether or not Kelly registered his copyrights in those interviews (a necessary step to bring a lawsuit). Given those two limitations, the lawsuit, as is, likely doesn't have much of a chance.
The book in question is written by an academic, Kelli Marshall, who appears to be
a huge fan of Gene Kelly and is working to put together a scholarly book exploring a bunch of his interviews. Kelly's widow finds this quite upsetting:
On or about March 29, 2016, Plaintiff was contacted by defendant Marshall via a Facebook message inquiring whether permission is needed to include several ofthe Interviews in a printed book Marshall is planning to cause to be issued by and through University Press.
On or about March 29, 2016, Plaintiff responded to Marshall via Facebook message, stating, "Yes, Gene's words are his intellectual property . . . as are his letters, holograph notes, magazine pieces, etc. . . . You must obtain permission to use them."
On or about March 29, 2016, Marshall responded to Plaintiff via Facebook message, informing Plaintiff that Marshall is in the process of editing a book of
Gene Kelly interviews for co-defendant, University Press, as part of the University Press'
"Conversations with Filmmakers" series (the "Book"). Marshall stated that she intends to
use various Gene Kelly interviews, including several interviews Gene Kelly had conducted
with the British Broadcasting Company ("BBC"). Marshall sought Plaintiff's permission for use of those Interviews.
As you can probably figure out, Kelly's widow refused to grant permission, and then followed it up with a cease and desist letter. University Press then sent her a letter saying that it was going ahead with the book, saying that it had obtained permission "from unidentified third parties," which likely means the publications where the interviews were initially published. And you can figure out what happened next:
On April 18, 2016, Plaintiff's counsel responded to University Press
by email (copying Marshall), stating that Plaintiff owns the copyrights to all of the
Interviews, not just interviews with the BBC, and that Defendants have no permission to
use any of the Interviews for the Book or for any other purpose. In that same email,
Plaintiff's counsel advised University Press that the threatened publication is highly damaging to Plaintiff's rights and, unless Defendants cease and desist, Plaintiff would seek damages, including statutory damages, for willful infringement of the copyrights in the Interviews.
Yeah, this seems like a nonstarter. First off, Kelly's widow is clearly overclaiming here. Just because Gene Kelly said stuff in interviews, it does not mean that he has any copyright interest in them, let alone automatically getting copyright on all his words, where no one can ever make use of them. That's just not how copyright law actually works.
And, from the emails, it certainly sounds like the publisher got permission from whoever has a much stronger claim to the copyright in most of the interviews it wanted to publish. And, of course, even if none of that is true, it seems like there's a fairly strong fair use case here, considering that it's an academic publication, and done as a compilation to look more closely at Kelly's interviews over the years (I wouldn't say that the fair use claim is a slam dunk, but there's a strong argument that can be made for fair use). But, of course, that requires Kelly to actually have a copyright interest (and to have registered it) in the first place.
But, really, let's take a step back here and look at the bigger picture. There is
no legitimate copyright reason to grant Kelly a copyright in interviews that he did. He was not incentivized to do these interviews because of the copyright. He did them for whatever reason -- probably related to getting publicity in most cases. As such, it's ridiculous that we're even discussing a copyright interest at all here. There's no need for one for the interviewee.
So, in the end, this seems like yet another case of copyright as censorship. Patricia Ward Kelly does not want anyone else publishing a book that has extensive quotes from her husband (it should be noted that she's apparently working on her own book...), and thus the easy tool to use is copyright to censor this book that she doesn't control. Again, I can't see how this lawsuit survives very long, but it's another in a long list to add to examples of (1) copyright as censorship and (2) estates of deceased creators overclaiming copyright.
Filed Under: books, copyright, gene kelly, interviews, kelli marshall, patricia ward kelly
