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July 12, 2004



I think the analysis is roughly as follows:

1. You need a tangible instantiation for copyright to attach. So, unless you can claim that your conversation was a performance of something you do have a copyright in, you don't actually have a copyright in your conversation.

2. Someone who taped or transcribed your conversation could have a copyright in that instantiation. They couldn't necessarily distribute the instantiation without your agreement; you might have causes of action against them based on either publicity rights or privacy rights. These later rights are the ones that require, for example, COPS to get releases from the people they videotape getting dragged into police cars. (IIRC, there's a case, Baltimore Oriels vs. MLB (name could be wrong), that touches obliquely on this).

3. Copyright doesn't exclude anyone from the specific language used - it prohibits others from copying that language. So, given the fact that you were there and have your own recollection of the conversation, you could re-create it and publish that recollection without impinging on the other party's copyright. Furthermore, you could probably copy decent sized chunks from the interview (particularly if you were responding to claims about the interview) under fair use.

I didn't backcheck anything that underlies the above, so take it FWIW (not very much).

Here's a weird question that sort of arises out of your. Courts have decided that electronic recordings on hard drives meet the tangibility requirement for copyright to attach. Some brain models are (to the extent I understand them) fairly explicitly based on a pretty tight brain-as-computer model. So, in time will we give copyright protection to your conversation because it is recorded in your brain? Are we going to distinguish between that and the hard drive b/c of the relatively flawed nature of either (a) the brain's recording, or (b) the brain's playback? (Ultimately, I suspect it must be the playback issue (or I'm mis-structuring the issue), b/c any recording will have some information loss (compression algorithms, e.g.)).


Adam Kotsko

I suspect that the answer would be "whatever diminishes corporate profits the least."

They would word it differently, of course.

Ray Davis

Before Cambridge lawyers show up, I should note that eaves were dropped with the subjects' permissions. I'm sure all the proper release forms were signed. (Although, as I hint, my own opinion of what should in a just society be considered "proper" and "property" may differ from Cambridge University's, and indeed from the laws current in both our great nations.)


This reminds me of a recent (UK) court case where one record company sued another over unauthorised & unattributed use of a recording of a radio transmission. The litigants claimed, apparently justifiably, that they owned copyright on the recordings, even though these had been made and issued without the permission of the transmissions' broadcasters...

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