Monday, September 20, 2010

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

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? Plenty. Leading the parade of horribles is copyright infringement. Will the interviewee claim ownership of the interview? Other issues include defamation and false light invasion of privacy (a misleading implication that the average person would find highly offensive). 

Of course, there's lots of excellent defenses, such as newsworthiness, Free Speech, fair use (discussed latter), and, of course, implied consent. Because of the legal what-ifs, and hazy 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 written release.
Document signing apps like DocusSign 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.
Click here for sample interview release forms.
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, audio or video recorded consent, provided the scope of rights are clearly defined is a a viable alternative.  
Before you start the interview, record the consent. State the date of the interview, and the interviewee's name so it's clear who is being interviewed. This is the key part. State clearly, and quickly, that the interview may be edited and used in any and 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 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 recording, you've gone a long way to reducing the risk.  
Of course, if the interviewee places limits on how, or where, the interview may be used for, the law will hold you to your promise. 
The Parade of Interview Horribles
Libel and Revocation Lead the Parade of Horribles
Copyright. Will the interviewee claim ownership of the interview? Some copyright scholars posit that the interview is jointly owned by the interviewer and interviewee. For a joint work to exist, writer (or podcast host) and the interviewee must mutually agree going in that they will each own the interview. But, that's not how things work in the real world. In the unlikely event it's seen as a joint work, you can publish conversations about celebrity addiction without permission, provided you account to the interviewees.

The Copyright Office believes that an interview consists of two separate copyrights. That's right, they believe it consists of two separate copyrights - the interviewer and interviewee own the words they spoke. A lot of good that does the interviewer. A third theory is the interviewer owns the copyright in the selection and arrangement of the questions and answers. 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 is a false statement about a living person (business or group) that harms their reputation. Truth is a complete defense to libel. 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 a tough time winning a libel suit because of the constitutional actual malice standard, the best defense is written consent.
The gold standard is a well-drafted written release. Document signing apps like DocusSign 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. It won't allow you to publish an entire interview.

Fair use allows writers, podcasters and others to copy small portions of in-copyright works for socially productive purposes without seeking permission. A defense to copyright infringement, it allows courts to avoid rigid application of copyright law where 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, these four factors: (a) the purpose and character of the use, including whether the use is primarily commercial in nature; (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 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, negligent publication.  Most of these policies also cover the costs of defending a lawsuit, including attorney's fees and court costs.

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Image:  Parade of Horribles and Antiques, Portland, Maine
Photographer:  Unknown
Year:  1920
Credit: Main Historical Society

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