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 rights.  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 materials.   

          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 material.  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 self-evident.  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.

Conclusion 

          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. 

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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.  The 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.  

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.


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