I witnessed an argument earlier in which people debated over whether or not the DMCA takedown of a video with an embarrassing voicemail was justified; namely, did the person who LEFT the voice message have the copyright.
My belief was no. Both parties are aware that a recording is occurring and the person is intentionally leaving it on another voice mail system.
Others thought that the person leaving the voicemail has the copyright and they merely grant one reproduction.
The voicemail in question was an embarrassingly petty and childishly delivered legal threat. The competitor responded openly and filed a DMCA notice to get the video removed. Others mirrored it though, and this video has the voicemail in question:
Thanks in advance!
The question is a fascinating one and, in my opinion, there is as yet no clear answer. The basic reason: While the Copyright Act specifies that the ownership of copyright in a work "vests initially" in its "author or authors," 17 U.S.C. 201(a), it does not expressly define the latter term.
There are, however, clues elsewhere in the Act as to the term's meaning:
Three basic conditions must be satisfied under the Copyright Act for a work to be protected. There must be an "original work of authorship." It must have been "fixed" in a "tangible medium of expression,"- in a disk, tape, CD-ROM, on paper, etc. And, the fixation must have been under the "authority" of the author.
Theoretically, that means that there are at least three possible views as to who constitutes the "author" of a voice-mail message:
The person who left the message. The person who caused or is responsible for its "fixation." Or, theoretically, both as "joint authors."
There is considerable difference of opinion as to who is the owner of copyright in an interview: the person who conducts the interview, asks the questions and transcribes the subject's responses; the interviewee; or both as "joint authors." There, however, the person who conducts the interview does more than merely transcribe the other person's contributions. He or she also contributes to the form the original expression takes.
Because that is so I believe the Copyright Office takes a middle road on the question. It views an interview as a work that is composed of two parts. The person who conducted the interview is generally viewed as owning the copyright in his or her own questions and comments and the overall organization and/or arrangement of the subject's responses. The interview subject, on the other hand, owns the copyright in his or her verbatim statements.
Absent a judicial decision that seriously parts ways with this approach, my bet would be that the person who leaves a voicemail message will ultimately be seen as the "author" and owner of copyright in it-- provided, of course, it is sufficiently "original" to be protected at all. I say this because, unlike in an interview, the other party to a voice mail does not make any contribution beyond mere transcription. That contribution, in my view, does not qualify under the Act to constitute them an "author."
That said, however, remember that the Copyright Act makes an important distinction: between owning the "copyright" in a work and the "material object in which the work is embodied."
So while, in my view, you may not end up owning the copyright in the message that was left, you probably own an individual recording or digital rendering of it. That opens up another series of issues.
Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.
Super analysis by Attorney Bass. To keep the collegial discussion alive – and perhaps to semi, sort of, kinda answer the question posed – I suggest another way of looking at the situation.
A copyrightable work may [and often does] include within it other works that are also copyrightable. To begin at the end, I think that the creator of the Zen Magnet video owns the copyright in that audiovisual work and that Broinstien [the person who left the voice mail message] owns the copyright in the sound recording of that message.
I do not think Broinstien is, or can be, a joint author of the audiovisual work because he did not intend for his voice mail message to form part of Zen Magnet’s audiovisual work [intention to merge his separate contribution being a necessary element to create a “joint work” – 17 USC 101].
The issue, I think, is whether it’s fair – under copyright’s fair use doctrine at 17 USC 107 – for the Zen Magnet folks to publish Broinstien’s copyrighted voice mail message in their audiovisual work. Reasonable people can disagree on that result but, for me, I think it’s clearly fair.
The cases trying to figure out who owns the copyright in an interview are not, I don’t think, analogous because both the interviewer and interviewee know and expect that their contributions will be merged into one copyrightable work. The issue in that situation is whether the two are “joint authors” or not. Unlike our situation. For example, the court in Hemingway's Estate v. Random House, Inc., 23 N.Y.2d 341 (1968) [obviously pre-1976 Act] held that Hemingway’s heirs could not prevail in a copyright infringement claim based on an interviewer’s publication of very extensive Hemingway quotes that Hemingway provided during a number of interviews. The Court ducked the question whether Hemingway was a “joint author” and held that the interviewer had a license to publish the quotes—which was what both participants expected all along. Again, unlike our situation.
In short, copyright law permits the possibility that the Zen Magnet folks own a copyright in their audiovisual work and Broinstien owns a copyright in his voice mail message. Did the Zen Magnet folks infringe Broinstien's copyright? I don't think so.
I just wanted to invite Attorney Ballard to weigh in on my postings any time. His insights are good ones and I think the dialogue that results is helpful to those who read these discussions. I'm particularly glad he weighed in in this particular instance because, apparently, we focused on different questions. I focused on the question asked in the heading and body of the question: "Copyright of a voice message left by someone else on my voicemail - who does it belong to?" He focused on the question implicit in the final sentence.
Both questions deserve responses and Mr. Ballard and I would appear to be in accord as to the responses. We both agree that the copyright in the voicemail message belongs to the person who left it . We also both agree that, notwithstanding that fact, the use of the message that was made by the video was probably a "fair use." In other words, the "fair use" analysis Mr. Ballard made in response to the question I overlooked was absolutely spot on, in my opinion.
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