Trump’s tall tale of the tape

Former President Trump is suing journalist Bob Woodward, publisher Simon & Schuster and the publisher’s parent company for nearly $50 million in damages arising from the publication of taped White House interviews that Woodward conducted with Trump’s consent between December 2019 and August 2020. Trump is claiming breach of copyright in his voice.  

The interviews formed the basis for a Woodward book entitled “Rage,” which Simon & Schuster published in September 2021. Trump makes no legal complaint about the book, which was based on the taped interviews. His beef is with the publication of an audiobook representing the taped recordings.

Woodward and Simon & Schuster vowed to “aggressively defend the lawsuit.” “All of these interviews were on the record,” they said, “and recorded with President Trump’s knowledge and agreement. Moreover, it is in the public interest to have this historical record in Trump’s own words.”

Trump trashed “Rage” virtually from the moment of its publication. Two days after release, he tweeted:

“Bob Woodward’s badly written book is very boring & totally ‘obsolete.’ Didn’t even talk about the recent Middle East deal. Just another tired, washed up Trump Hater, who can’t stand that I have done so much, so quickly! #MAGA”

Although “Rage” sold over 600,000 copies in its first week, Trump’s  complaint claims that “Rage” “was a complete and total failure.”

The complaint charges that on Oct. 25, 2022, “Woodward decided to exploit, usurp and capitalize upon President Trump’s voice by releasing the recorded interviews as an audiobook dubbed “The Trump Tapes: Bob Woodward’s Twenty Interviews with President Donald Trump.”

Trump, as we know, is given to hyperbole. He claims his voice, “is one of the most recognizable voices in the world…much more valuable and marketable than Woodward’s interpretation of the interviews in Rage.”

Courts have held flatly that “a voice is not copyrightable.” Barbara McQuade, a University of Michigan law professor and former U.S. attorney, said Trump’s case is “weak,” and that if the former president consented to the use of the interviews in a book, he can’t object to them later being published in audio form, unless there was an “explicit agreement.” McQuade observes that there was no “explicit agreement” that Woodward could not use the recorded words in audio book form.

Where the purpose of the publication is the dissemination of news, the constitutional protections of speech and press must be paramount. Courts have held that if the purpose of media use of a person’s voice is informative or cultural, “the use is immune from suit.” And, as the Supreme Court has observed, the fact that books “are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by  the First Amendment.”

Trump gave his consent to the interviews and agreed that his words could be recorded for use in a book. Woodward had the discretion to determine which of Trump’s words he would use. He had a roving commission to use any or all the content of the interviews.

While, apart from the interviews, Trump’s recorded words may give rise to a second layer of copyright protection as a “sound recording,” the interviewer owns the copyright. Courts, moreover, are reluctant to extend copyright protection to spoken interviews because of First Amendment concerns.

As Chief Judge James Turk of the Western District of Virginia put it in the 1981 case of Reverend Jerry Falwell v. Penthouse International in words that could have been written for Trump’s complaint:

“Plaintiff’s claim of copyright presupposes that every utterance he makes is a valuable property right. If this were true, the courts would be inundated with claims from celebrities and public figures all of whom may argue that their expressions should also be afforded the extraordinary protection of copyright. Such a result was never contemplated by the development of the law regarding common law copyright, and such a result would run counter to the firmly established constitutional guarantees of freedom of speech and of the press.”

Trump’s suit is further infirm in that it is an outrageous example of forum shopping. He brought the case in the Northern District of Florida, a jurisdiction that has nothing to do with the parties or the grievance. Trump lives in Mar-a-Lago, which is in the Southern District of Florida, where he has had a hard time in the courts. None of the acts complained of occurred in Florida, and none of the defendants are residents there. Even Trump’s latest attorney, Robert Garson, who presumably authored the complaint, has offices in south Florida and New York. One can predict with confidence that one of the defendants’ early litigation moves will be to transfer the case to the District of Columbia, where the interview occurred. 

The copyright lawsuit comes just weeks after U.S. District Judge Donald M. Middlebrooks out of  West Palm Beach sanctioned Trump and another one of his attorneys, Alina Habba, ordering them to pay nearly $1 million for filing what the judge said was a bogus lawsuit against Hillary Clinton and others.

Middlebrooks accused Trump in a Jan. 19 filing of a “pattern of abuse of the courts” for filing frivolous lawsuits for political purposes, which, he said, “undermines the rule of law” and “amounts to obstruction of justice.” I wrote a book in 2020 entitled “Plaintiff in Chief: A Portrait of Donald Trump in 3500 Lawsuits” about some for the frivolous lawsuits Trump was party to before he took office. Citing Trump’s recent legal action against the Pulitzer Prize board, the New York attorney general, Big Tech companies and CNN, Middlebrooks described Trump as “a prolific and sophisticated litigant” who uses the courts “to seek revenge on political adversaries.”

No wonder McQuade suggested that the true intention of the suit may not be to punish Woodward or his publisher but rather “…to provide political talking points portraying himself as the victim of the media,” McQuade told Newsweek. “Aggressive use of lawsuits can also be a way of deterring others from publishing unflattering news.”

We could easily see more sanctions coming Trump’s way. He is not doing well in court these days.

James D. Zirin is a former federal prosecutor in the Southern District of New York.