Saturday, September 4, 2010

Ask a Lawyer: Do I Need an Interview Release?

["Ask a Lawyer" is part of a Q&A series currenting running in The Huffington Post.   The "Q" is courtesy of Jeff Riviera, a well-respected journalist who reports on book publishing trends and personalities.]

Q: I'm writing a new book with a collection of celebrity stories of triumph. They are based on my interviews with them. Do I have to have their permission to have them in my book? If they write the stories themselves, do they have to sign a release form? If so, what should be in it?

A: Celebrities like to sue people for false endorsement and infringement of their right of publicity. And, if they have a clever lawyer, they can even claim you used their interview contrary to their wishes, which translates into a copyright infringement or breach of contract claim. Of course, there's lots of excellent defenses, such as newsworthiness, Free Speech, fair use (to claims of copyright infringement), and, of course, implied consent. However, the best defense is written consent. Written consent is an insurance policy against frivolous and not so frivolous lawsuits. However, I hear you say, "What self-respecting celebrity would sign an interview release?" Excellent point. While less comprehensive than a written release, a video or audio release is a good substitute. If you are recording the interview, when you turn the recorder on, introduce yourself by name. State the date of the interview, and the interviewee's name so it's clear who is being interviewed. Make it clear that the interview may be used in whole or in part, in your book (tentatively entitled __________________) and in other media, in all languages throughout the world, in perpetuity. Then ask if you have permission to record the interview and their answers to your questions.

It's important that the celebrity audibly consent, or nod at the appropriate time while the camera is rolling. If you don't obtain consent, the advantage of interviewing a celebrity is that the First Amendment generally immunizes interviewers from celebrity claims of invasion of the right of publicity and libel. If you transcribe accurately, and remember where you squirreled away the interview tape, you've reduced a lot of risk. Of course, if the celeb places limits on how, where and for what purpose the interview may be used for, the law will hold you to your promise. And, keep in mind, the celeb could claim copyright in his utterances, which you dutifully recorded.

In answer to the second part of your question, if they write the stories themselves, absolutely get it in writing. Your publisher will demand it. If you don't get written permission, their written contribution is unpublishable. Publishers don't like ambiguity. It exposes them to legal risk. While you may decide personally that the probability of a lawsuit is small, it's unlikely your publisher will see it that way. Trust me on this. You will need a well-written agreement, signed by the celebrity, granting you and your publisher (and their licensees) certain enumerated rights in their written contribution.

So who owns this interview?

The Copyright Office believes that interviews consist of two separate copyrights. They don't actually know. Knowing is left to the courts. However, it's a good bet that the interviewer owns his question, and the interviewee  owns his answer. Of course, if an interviewer edits an interviews, adds additional insights and comments, it just might be a derivative or joint work.   The takeaway is, when in doubt get a release; written releases (when propertly drafted) trump oral releases.

Lloyd Jassin is a publishing and intellectual property attorney and a former book publishing executive.  Read more about copyright permissions and releases in The Copyright Permission & Libel Handbook (John Wiley & Sons). 

THE INFORMATION PROVIDED ABOVE IS OF A GENERAL NATURE AND IS NOT INTENDED AS LEGAL ADVICE.  IF YOU HAVE A SPECIFIC LEGAL ISSUE OR QUESTION, SEEK THE SERVICES OF A COMPETENT ATTORNEY.

2 comments:

  1. May I ask a variation of this question please? If you obtain written permission from your interviewee for an interview to be published (for example) in an article or on your website or blog, and then many years later, you decide to write a book and quote those same interview answers in your book, do you need fresh, separate permission for this new publication use? Or does the original permission stand?
    Thank you very much.

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  2. Thank you for this article! I've been trying to find an answer to this question online and the articles about it are few.

    Specifically, what type of agreement do you need with an interviewee who writes their own story, but then you edit it before it goes into a larger book? Would it be a collaboration agreement even though they only wrote a few pages in a huge book?

    What type of agreement do you need for an interviewee where they verbally tell you their story and then you write it up yourself? Same situation, it is a few pages long in a larger book.

    I am self-publishing my book and want to make sure my legal bases are covered.

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