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Fair Use to Publish Secretly Recorded Conversation?

Another “fair use” case hits airwaves.

In this case, the District Court judge in New York ruled that Bloomberg LP was not liable for copyright infringement when distributing a recording (and transcript) of a conference call between The Swatch Group Management Services Ltd. and industry financial analysts. The Court ruled on Bloomberg’s motion for summary judgment that the publication was “fair use,” thus dismissing the watch company’s single claim for infringement.

“Having considered the statutory fair use factors and weighed them together in light of the purposes of copyright, I conclude that copyright law’s goals are better served by allowing defendant’s use of plaintiff’s work than preventing it and I hold that defendant’s use qualifies as fair use,” the court stated in its opinion and order.

According to the complaint, Bloomberg “surreptitiously” joined the Swatch conference call with analysts, illegally recorded the call, then sold the recording and transcript online. While this sounds a little dodgy (doesn’t NY have a rule about surreptitious recordings? California requires that all parties to the recording consent), the Court focused on the interplay between fair use and the First Amendment. That is, fair use supposed to strike balance between one’s right to control the work create and the public’s need for access. 17 U.S.C. Section 107; Red Lion Broad. v. FCC, 395 U.S. 367, 390 (1969) (recognizing “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas”); see also Stewart v. Abend, 495 U.S. 207, 228 (1990).

Here, the court said that the First Amendment’s “robust quality” would be compromised unless news-gathering organizations could continue their long tradition of publishing “information obtained clandestinely and in breach of conditions of confidentiality.” That’s just not what I would expect a federal judge to say. It seems like a bit of legal-shoe-horning to me. Still, I agree that the fair use doctrine needs some flexibility if it is to fulfill purpose as a First Amendment safeguard. Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).

Interesting shout out to the First Amendment/fair use interplay, but doesn’t this beg the question of whether secretly recorded conversations are even entitled to copyright protection? The law is generally unclear as to when, if ever, a conversation may be protected by copyright. See Jackson v. MPI Home Video, 694 F. Supp. 483, 490 (N.D. Ill. 1988) (Jesse Jackson’s speech at the 1988 Democratic Party Convention found to be protectable as, unlike a conversation, it was composed prior to delivery); Estate of Hemingway v. Random House, Inc., 23 N.Y. 2d 341, 244 N.E. 2d 250 (1969) (presumption that conversations are not copyrightable subject matter); Falwell v. Penthouse International, Ltd., 521 F. Supp. 1204, 1207-08 (W.D. Va 1981) (not every utterance one makes “is a valuable property right”).

Jonathan Pink is a intellectual property and business attorney at Bryan Cave, LLP. He practices in Los Angeles and Orange County, California and can be reached at

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at, and his full profile can be viewed at

1 Comment on “Fair Use to Publish Secretly Recorded Conversation?”

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