Saturday, September 4, 2010

Ask a Lawyer: Do I Need an Interview Release?

["Ask a Lawyer" appears in The Huffington Post.  The "Q" to my "A" is  Jeff Riviera, a journalist who reports on publishing and entertainment trends and personalities.]

Q: I'm writing a book based on interviews I've done with political leaders, writers, actors, and other prominent people. Do I need written permission? What can I do to avoid being sued for libel?

A: What can go wrong if you don' have a signed release? Leading the parade of horribles are
claims for defamation, false light invasion of privacy (a misleading implication that the average person would find highly offensive) and breach of contract.   
 
If you choose to forego a release, there are First Amendment, fair use (discussed later), and implied consent defenses that may insulate you against certain claims. However, because of the legal what-ifs, the ill-defined boundaries of implied consent, and the fact public figures are known to have large egos, deep pockets, and lawyers on speed dial, the best practice is to obtain a release.  
 
A well-drafted release will cover more than just permission to use a person's name and statements. For example, a release can potentially sidestep a lawsuit alleging alterations made to the speaker's words have tarnished their reputation. This is especially helpful when the individual is not a public figure, and the statements do not concern a matter of public interest. 
 
Another potential problem a release can prevent is a disgruntled interviewee's attempt to revoke their consent or demand certain statements be deleted. The drafter of a release will want the unambiguous right to use the individual's name, voice and likeness to promote the interview.  A release may include an indemnification clause that shifts liability from the publisher or podcaster to the interviewee. If the interview can be edited at the publisher or podcaster's discretion, the interviewee might try to exclude any editorial changes made without their consent from the indemnity.
 
Here's a link to sample interview releases
 
Spoken Releases
 
Did I hear you say, "What self-respecting political leader, bestselling author, or celebrity would sign an interview or guest appearance release? Excellent point. While less effective than a signed release, you can record the subject's consent. Provided the scope of rights is clearly defined, it's a viable alternative.  
 
While recording, but before the interview starts, state the interview date and the interviewee's name.  State clearly that the interview may be edited and used in all media, in whole or in part, in all languages throughout the world, in perpetuity. Then ask if you have their permission to record the actual interview and their answers to your questions. 
 
Of course, if the interviewee limits how or where the interview may be used, the law will hold you to your promise. 
 
The Parade of Interview Horribles
 
Infringement and Libel Lead the Parade of Horribles
Copyright. Will the interviewee claim ownership of the interview? Some copyright scholars posit that the interviewer and interviewee jointly own the interview. To quality as a joint work, the interviewer (or podcast host) and the interviewee must agree that they will each own the interview. But, that's not how things usually work in the real world.  Most interviews do not qualify as joint works under the Copyright Act.  In the rare instance, an interview qualifies as joint work, either co-owner can issue non-exclusive licenses without the other's consent, subject to a duty to account for any profits made. 

The Copyright Office believes that an interview consists of two separate copyrights. That is right.  They believe it consists of two separate copyrights - the interviewer and interviewee each owns the words they spoke. It's an interesting theory but of little practical value to the interviewer.  Another legal theory is that the interviewer owns how the questions and answers are selected and arranged.  In other words, the interview as a whole.  So, who owns the interview? There's no bright-line rule. That's why it's a good idea to get it in writing.  

Libel, Privacy, Publicity. Without a signed release, writers, publishers, and podcasters are vulnerable to being sued for libel, and a lesser threat, invasion of privacy. 

Libel is a false statement about a living person (business or group) that harms their reputation. Truth is a complete defense to a libel claim. Where the plaintiff is a celebrity or public figure, the plaintiff must show that the false statement was made with reckless disregard for the truth (aka actual malice). While a celebrity or other public figure may have difficulty winning a libel suit because of the legal actual malice standard, written consent is the best defense. If you transcribe accurately and can locate the recording or release, you've taken significant steps to minimize the risk of a successful libel suit. 
 
The right of publicity is the right to control the commercial exploitation of your name, persona or image. The use of a celebrity's persona without their permission is generally protected under the "newsworthy" exception, provided it's related to the use and is not expressly misleading. The "newsworthy" exception applies not just to hard news, but also matters of legitimate interest to the public, including sports, entertainment and politics.  In some states a deceased person's right of publicity survives their death and may pass by will or be assigned.  

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 - but not copyright infringement.   

The gold standard is a well-drafted written release. Document signing apps like DocuSign and Adobe Sign are simple e-signature solutions. Today we're habituated to clicking OK boxes without much thought. So, getting a release signed need not be a burdensome task.
Fair Use
 
If the ownership issue can't be resolved conclusively, you may be able to roll out the fair use defense. But, it's a partial solution. For example, it may not allow you to publish an entire interview.

Fair use allows writers, podcasters, and others to copy (usually) small portions of in-copyright works for socially productive purposes without seeking permission. As a defense to copyright infringement, fair use allows courts to avoid rigid application of copyright law where the rigid application would "stifle the very creativity which the law is designed to foster."

Unfortunately, fair use is not amendable to mechanical rules. The fair use test takes into consideration or weighs four factors: (a) the purpose and character of the use, including whether the use is primarily commercial; (b) the nature of the copyrighted work; (c) the amount and importance of what's used in relation to the original work; and (d) if the use supersedes a market for the original?

Media Liability Insurance

If the subject matter is sensitive and you don't have a signed release, given the murkiness of the law, media liability insurance is something to look into. It's a specialized form of insurance that covers claims of copyright and trademark infringement, invasion of privacy, defamation, and other contextual errors and omissions. Some policies even cover claims of misappropriation of ideas and negligent publication.  Most of these policies also cover defending a lawsuit, including attorney's fees and court costs. 

 #  # # 
 
I Shall Be Released (Bob Dylan)
 
 
 
Image:  Parade of Horribles and Antiques, Portland, Maine
Photographer:  Unknown
Year:  1920
Credit: Main Historical Society




THE INFORMATION PROVIDED HERE 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.

    ReplyDelete
  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.

    ReplyDelete