Tiger Woods’ Texts: Copyright Protection at a Price

Tiger Woods’ alleged mistresses are nothing if not enterprising. Case in point: as reported in the L.A. Times, alleged Mistress Number 11, Joslyn James, recently set up a website — sextingjoslynjames.com — in which she posted over 100 allegedly X-rated text messages allegedly sent to her by Tiger Woods. I checked out the site for myself, and can now confirm at least one of those “alleged” facts: the stuff is pretty graphic. Whether Tiger actually wrote the texts remains unknown — but creates an interesting intellectual property dilemma.

Like other works of authorship, a letter is entitled to copyright protection. The copyright is owned by the person who writes the letter, not the person who receives it. If I write a letter and send it to you, you own the piece of paper with the words on it, but I own the intellectual property rights in the letter, including the right to complain if you copy or publish my letter without permission. Copyright owners not only have the exclusive right to publish their letters, but also to decide not to publish them at all. Back in the eighties, Random House was hit with an injunction after it included excerpts of some of J.D. Salinger’s unpublished letters in a biography about the reclusive author. Even though he had given up possession of the letters themselves, Salinger still owned the copyrights, and was able to shut the book down.

As the letters of the 21st Century, emails and text messages are likely entitled to the same copyright protection as traditional letters. Of course, emails and texts can be forwarded or uploaded at the press of a button, which raises issues about whether we at least implicitly authorize the recipients of our texts to forward them at will. Under most circumstances, those who rely on electronic messaging probably assume the risk that their words will not remain private. On the other hand, there is a greater expectation of privacy in texts between two people with a close personal relationship, such as husband and wife. If anything, the level of privacy that a golfer would expect to have in communications with an (alleged) mistress would be even more pronounced.

So let’s assume that Tiger fully intended that all of his alleged texts to Joslyn James would remain confidential. Tiger would have the right to assert copyright protection in the texts, and complain if James posted them on her website. If push came to shove, he would even be able to file a lawsuit against James for copyright infringement.

How would he go about doing this? Well, the Copyright Act requires that the owner of a copyright to register the copyright with the Copyright Office as a condition of bringing a lawsuit. You don’t have a register in order in order to obtain a copyright in the first place; copyright protection is automatic as soon as you write or type your letter. But a copyright by itself doesn’t do you much good. In order to enforce your copyright in court, you have to register. But don’t worry: registration only costs $35, and it can be done online in a few minutes.

So yes, if Tiger Woods wants to put an end to a salacious web site full of graphic text messages never intended to see the light of day, let alone posted on the internet, all he needs to do to show he means business is to register his copyright in the texts.

Of course, this means he’d have to admit that he actually wrote them.

On second thought, this website might be around for awhile. Yes, IP protection may come cheap, but nobody said it was free.

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