Monday, September 20, 2010

Ask a Lawyer: Interviews, the Law, and the Writer

Q: I'm writing a new book on celebrity stories of triumph.  The stories will be based on my interviews?  Do I need written permission?   What do I have to do to avoid the threat of libel lawsuits?   

A:  Libel is a false statement about a living person (business or group) that harms their reputation.  

So, besides getting the story, you need to get the story right.  Understand the facts, and quote the
Vernon Scott interviewing Marilyn Monroe
celebrities correctly.   While a celebrity may have a tough time winning a libel suit because of the constitutional "actual malice"standard (discussed below), 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, recorded consent, whether on video or audio, 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. With the recording device running, ask if you have permission to record the interview and their answers to your questions.

It's important that the celebrity audibly consent.  However, if you don't obtain consent, the advantage of interviewing a celebrity is that the First Amendment will likely immunize an interviewer from a celebrity's libel claims, provided the interview was not published with "actual malice."  “Actual malice, ” a legal term of art, means:
  • The story was published with the knowledge that it was false.
  • The story was published with reckless disregard of whether or not it was false.
If you report accurately, write clearly, and can remember where you squirreled away the recorded interview (to verify quotes), the threat of a successful libel suit (in the United States) becomes remote. If you take it upon yourself to rely on the "actual malice" standard, keep in mind it applies only to public officials and public figures. 


If the celeb places limits on how, where and for what purpose the interview may be used, the law will likely hold you to your promise.  After all, a promise is a promise.

Ownership of the Interview

So who owns this interview ? Some copyright scholars posit that the interview is jointly owned by the interviewer and interviewee.  As such, it constitutes a joint work.  The Copyright Office believes that an interview consists of two separate copyrights. That's right, they believe it consists of two separate copyrights.  They don't actually know. Knowing is left to the courts. That's why it's a good idea to get it in writing.