Is a Voicemail I used copyright?
<p>I left a angry voicemail to an ex about 3 years ago. They just wrote and published a defaming song about me and a portion of the song had about 5 seconds of the voicemail I left. My voice and everything. I live in California and believe I have copyright to this voicemail. Should I sue and if I choose to can I WIN?</p>

<p>In the US, <a href="https://www.law.cornell.edu/uscode/text/17/102" rel="nofollow noreferrer">17 USC 102(a)</a> states that</p>
<blockquote>
<p>Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device</p>
</blockquote>
<p>Thus, a protected work must be &quot;fixed&quot;, in order to be protected. the term fixed is defined in <a href="https://www.law.cornell.edu/uscode/text/17/101" rel="nofollow noreferrer">17 USC 101</a>:</p>
<blockquote>
<p>A work is “fixed” in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority of the
author, is sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a period of more
than transitory duration.</p>
</blockquote>
<p><a href="https://www.law.cornell.edu/uscode/text/17/201" rel="nofollow noreferrer">17 USC 201(a)</a> then says that</p>
<blockquote>
<p>Copyright in a work protected under this title vests initially in the
author or authors of the work.</p>
</blockquote>
<p>Also note that under §102(b),</p>
<blockquote>
<p>In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such
work.</p>
</blockquote>
<p>Only the words – of the author – are protected. The law does not define &quot;author&quot;, which means that the courts will have to assign a definitive meaning to the term, if this arises.</p>
<p>A further requirement for copyright protection is that the work must embody a scintilla of creativity, thus a work created by an automatic procedure (e.g. a computer program) is not entitled to protection. Nor does ownership of a recording device which is used to &quot;fix&quot; a creative expression thereby gain the status of being the author.</p>
<p>In <a href="https://supreme.justia.com/cases/federal/us/490/730/" rel="nofollow noreferrer">Community for Creative Non-Violence v. Reid</a>, 490 U.S. 730 the court comments that</p>
<blockquote>
<p>As a general rule, the author is the party who actually creates the
work, that is, the person who translates an idea into a fixed,
tangible expression entitled to copyright protection</p>
</blockquote>
<p>but then notes an exception in the case of a work for hire (relevant to that case).</p>
<p>The owner of an unattended automatic recording device plainly does not &quot;create&quot; the fixed form. Noting that a fixed work is one made &quot;by or under the authority of the author&quot;, it is reasonable to conclude that the person who created the expression and 'authorized' putting it into a fixed form (by dictating to a machine, especially an unattended answering machine) is the author. In the normal case of a recorded interview, the resulting work is a joint work since the interviewer and interviewee both creatively contribute to the work (though the interviewee may have assigned their rights to the interviewer). This is an entirely different case, for which there is no definitive case law. You could hire a lawyer to find out how the courts will rule.</p>

<h2>You do not have copyright in the voicemail</h2>
<p>The owner of a copyright in an audio recording is the person who caused the recording to be made. In this case it was your ex who set up the recording equipment so she owns the copyright.</p>
<p>If what you said was a speech that you had written down in advance then the recording would be a derivative work. However, by knowingly leaving the message, you gave permission for that derivative to be made. Notwithstanding, it seems that these were impromptu remarks so this doesn’t arise.</p>

copyright intellectual-property