THE INTERVIEW RELEASE
Ivan Hoffman, B.A., J.D.
Authors may at some point run into a situation in which they interview someone
and obtain information from them that ends up in a book, periodical, newspaper etc.
This information may be words,
photographs, biographical material or other information.
Since we all have rights of privacy, it is necessary to
obtain from the person interviewed some form of written and signed release and grant or license of
If the author is going to be able to fully exploit the written piece,
whether a book or article or even in other media, the rights so released must be
not only traditional rights of privacy, but rights of commercial usage as well.
The interview release must be broad enough to cover the scope of rights that the
author may need in order to satisfy the author’s representations, warranties and
grants to the author’s publisher.
This article assumes that the author is entering into an
agreement with a publisher and whether for a book or a magazine article or
otherwise but the discussion applies as well to self-published books and other
In virtually every publishing agreement, whether for a book or a periodical, and
whether express or implied, there is most often a series of representations made
by the author to the publisher concerning rights that the author is purporting
to grant or license to the publisher.
If there is a gap between what rights the author has
obtained from the interviewee and the rights the author is granting or licensing
to the publisher, the author may be in breach of the author’s agreement and may
put both the author and the publisher in a serious legal situation.
Furthermore, in order to exploit the rights to the book or other project
containing the interview, the release must be broad enough to include a grant
from the interviewee of those rights.
Keep in mind that obtaining this release is almost always the responsibility of
the author in an author-publisher agreement.
Below are some but not all of the issues faced in the release.
The Scope Of The Rights Obtained
If the release merely allows the author to use the interview “in my book” or
magazine that the author is writing, that may be inadequate for the additional
and often very important uses.
In other words, even if the writing is used only as the
release has indicated, such as in a magazine or book, if the article is later
picked up for use in another medium, say a motion picture or television program
for example, or is reposted on the Internet in the form of an electronic data
base or otherwise, or is the subject of a translation, or is otherwise
re-purposed, there may be an infringement of the interviewee’s rights, and
perhaps the rights of others, in doing so.
If the interviewee has only granted rights to a limited
use such as in a magazine article or book, other uses may not be permissible and
such other uses may infringe upon the interviewee’s or such other party’s rights
of privacy, copyrights, rights of publicity or otherwise.
Thus, the rights obtained should also include the right to make derivative works
based upon the book or magazine article.
Merely having the right to use the interview in a book
or magazine does not necessarily imply the right to make another version out of
it and/or use the interview in such a new work.
The right to make a derivative work is a separate right
from the right to republish the article.
This right to make a derivative work must be the subject
of special acquisition language.
There also should be included the right to do foreign language versions of the
book or article as well as the right to include the interview or portions
thereof in any advertising or promotion for the book or article.
And here again, even if the interviewee grants the
foreign language rights to the book, this does not imply any grant to a foreign
language electronic version of it.
If there are any photographs of the person interviewed, the right to use these
should be included in the grant of rights as well. This may include the need to
have a license from the photographer or other copyright proprietor since there
may be copyright issues involved here as well.
If, on the other hand, the interviewee shares with the
author photographs of other people, there may also be rights of privacy issues
in those other people and these rights must be acquired separately from the
rights of the interviewee.
And here again there may be copyright issues as to the
actual photographs. Merely because the person has the physical possession of
photographs does not, by itself, grant to that person any rights to use those
images of other people nor any right to grant any rights of any sort to those
images to the author.
And sometimes the interviewee has letters from others and shares those letters
with the author.
Merely having possession of those letters, which perhaps conveys
ownership in the physical letter only, may not convey rights to the underlying
Thus, to the same extent as the photographs of other persons, the
use of letters written by others may have to be separately cleared.
The release must deal with issues about which party, interviewer or interviewee,
actually owns the rights to the “interview.”
This can be complex and the answer is not intuitively
There are issues of copyright rights and other issues, all of
which must be addressed in the release.
The release must also clearly state the legal “consideration” for the release.
The Warranties Of The Interviewee
Certainly the author should obtain warranties by the person interviewed that
protect the author and the publisher as well as their licensees and others from
any claims not only from the interviewee but from third parties as well.
The person interviewed should affirmatively state
that nothing in the interview violates any rights of any third parties,
including but not limited to copyrights, right of privacy rights, right of
publicity rights and so on and that in the event of any breach of any of these
warranties, that the interviewee will defend and hold the author and publisher
as well as their licensees and others harmless against any such claims.
There should also be warranties as to any materials provided by the interviewee.
There may be substantial other rights that should be obtained to fully protect
both the author and publisher as well as cover any possible future use of the
interview and its contents.
The author is advised to make certain that the entire
scope of the project as well as any potential future uses of the material is
well in mind so that the release may be appropriately crafted.
Under any circumstances, the author or publisher should
consult with an attorney with experience in these matters and should not use a
“boilerplate,” form document obtained from books or colleagues.
Keep in mind that in the business of intellectual property rights, which is the business you are in, legally appropriate agreements and a proper legal basis are not add-ons to your business, not something you do if you have any money left over; legally appropriate agreements and a proper legal basis are your business. Without a thorough and valid agreement and proper legal basis, what you have is nothing but an illusion and a house of cards. It only appears you are in business but in reality, you are not since given a controversy between you and the other party, the house of cards can collapse and you risk losing your rights and the money that goes along with those rights. If you are going to run a dress company, for example, an essential expenditure might be machines to manufacture those dresses. However, in the intellectual property business, an essential expenditure is a high quality intellectual property attorney. Thus unless you budget for attorneys fees in a realistic amount, the amounts you spend on the other areas of your business are potentially put at substantial risk. Further, you may put yourself in a lose-lose situation: if your project is a failure, you lose. But if your project is a success (or even if it is not), you may find that the other party, NOT YOU, ends up making all the money or you may open yourself up for more claims than you can even imagine and in which event, you lose because you pay all your profits to lawyers and/or damages to the offended parties. What kind of a way is that to run a business? It seems self-evidently self-defeating.
Copyright © 1996, 2019 Ivan Hoffman.
All Rights Reserved.
This article is not legal advice and is not
intended as legal advice.
This article is intended to provide only general,
non-specific legal information.
This article is not intended to cover all the issues
related to the topic discussed.
You should not rely on this article in any manner whatsoever and you should not
draw any conclusions of any sort from this article.
specific facts that apply to your matter may make the outcome different than
would be anticipated by you. This article is based
on United States laws but the laws of other countries may be different.
You should consult with an attorney familiar with the
issues and the laws of your country.
This article does not create any attorney client
relationship and is not a solicitation.
No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.