http://www.youtube.com/watch?v=f_w1FR67AXs

http://www.youtube.com/watch?v=f_w1FR67AXs

It’s not quite so simple, Mr. Clark. First, there is the matter of state law copyright, which some states extend to include “utterances.” (see, e.g., California).

Second, the relevant question is who owns the “recording of that episode,” which we would all agree is subject to federal copyright. Copyright ownership in recorded, spontaneous interviews turns out to be a difficult subject that has never been fully addressed by the courts. Is it a joint work, as Prof. Lessig suggested? Professor Paul Goldstein’s leading copyright treatise says “yes.” Prof. Patry’s copyright treatise also suggests that joint ownership may be appropriate. There is one case that goes the other way, Taggart v. WMAQ, but there are reasons to doubt its persuasive value (the interviewee was a jailed child molester who represented himself during the proceedings).

As is often the case in copyright law, it’s a bit more complex than you might think.

Whoever made the recording of that episode is the copyright holder of that episode, including Lessig’s segment. Lessig has no copyright on his own unrecorded utterances or anyone else’s. He doesn’t own the recording or the rights to it.

Our esteemed colleague Lawrence Lessig can “believe” what he wants. I would suggest branching out to unicorns and the Tooth Fairy.