Ask a Lawyer: Interviews and the Law

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 possibly go wrong if you don't obtain a signed release? Plenty. Leading the parade of horribles is defamation. Will the interviewee claim the edited interview, either by omission, implication or innuendo, placed them in an unfavorable light?

 

In 2016, Katie Couric was sued by a gun advocacy group for deceptive editing of an interview in a documentary titled Under the Gun. While Couric beat the $13 million dollar defamation lawsuit on appeal, a simple release could have saved time, money and the stress. 

 

While there are defenses such as innocent construction (to defamation), truth (to defamation), fair use (to copyright infringement), and implied consent (to use in other media), because of the legal what-ifs and hazy boundaries of the law, the best practice is obtain a signed release.  

Click here for sample interview release forms.

 

Spoken Releases

 

There are many reasons authors do not obtain written releases, including deadline pressure on interviews conducted by phone or Zoom. While less reliable than a signed release, recorded consent is a viable alternative, provided the scope of rights is clearly defined.

 

At the beginning of an audio or video interview ask if you have permission to record the interview, and they understand that you may edit the interview and use it for future research or in different media.

It's important that the interviewee respond. If you edit or transcribe the interview accurately, and store the recording in a safe and accessible place, you've gone a long way to reducing the risk of a successful defamation or copyright infringement lawsuit. 

 

Of course, the law will hold you to your promise if the interviewee limits how or where the interview may be used. 

 

The Parade of Interview Horribles

 

A  Parade of Horribles

Copyright. One of the hotly contested issues in copyright law is who owns an interview. Some copyright scholars posit that an interview is jointly owned by the interviewer and interviewee. However, to qualify as a joint work, there must be evidence that the parties intended to be joint owners. If determined to be a joint work, the co-authors are afforded equal rights in the work, subject to to a duty to account to each other.   

The Copyright Office believes that an interview consists of two separate copyrights, i.e., the interviewer and interviewee own the words they spoke. A third theory is the interviewer owns the copyright in the selection and arrangement of the questions and answers. Because it's often unclear if the interviewer and interviewee shared an intent to be co-authors, the best practice is to get a signed release.    

 

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 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 permission. A defense to copyright infringement, it enables courts to avoid rigid application of copyright law where the strict 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?

Libel. 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 due to the constitutional actual malice standard, a well-drafted release will give you the right to edit and use the interview in any media without 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.

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 and negligent publication. Most of these policies also cover the costs of defending a lawsuit, including attorney's fees and court costs.

# # #

 

Image:  Parade of Horribles and Antiques, Portland, Maine

Photographer:  Unknown

Year:  1920

Credit: Main Historical Society

Related Blog Posts

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors 

Libel in Fiction

Libel in Fiction

By Lloyd Jassin

Q: My main character is loosely based on a real person. I mean, that's who inspired me. I never identify him by name (he's my ex-friend), and I've made up 90% of the events in the book. After the book becomes successful, I'm worried he'll come back and try to take a stake in the millions. What can I do to prevent this? - GWB

A:  While such lawsuits are rare, you can be sued for defamation if your novel falsely depicts your former friend in an unfavorable light. 

 

Libel is a false and defamatory statement of fact communicated to a third party about an identifiable living person that damages their reputation. While it's logical to assume that a work of fiction that describes a world that doesn't exist is incapable of defaming a real person, that's not the law.     

 

For a novel or other fictional work to be actionable, readers must believe the allegedly defamatory statements are actually about the plaintiff. The description of the fictional character must be so closely aligned with a real person that someone who knows that person would have no difficulty linking the two. And, there must be an implicit belief that what the author wrote – notwithstanding disclaimers – was true. What about a fictionalized autobiography? If a character (i) is depicted in a defamatory manner, (ii) is recognizable, and (iii) a reasonable reader can understand the defamatory statement to refer to that person, there's no veil of fiction to hide behind for purposes of libel law.   

Happily, for writers (and The Weekly World News), libel in fiction claims generally do not survive a motion for summary judgment. That's because courts recognize several defenses and privileges to defamation claims, including substantial truth and statements of opinion. Another reason many defamation lawsuits fail is that the plaintiff fails to make their case. Under U.S. defamation law, the plaintiff bears the burden of proving the defendant acted negligently.

Despite the breathing space the First Amendment affords writers, not all libel-in-fiction lawsuits are resolved favorably for the author,  their publisher, or producer partners. For example, in 2009, in the Red Hat Club case, the plaintiff was awarded $100,000 in damages by a Georgia court for a fictional character modeled on her. The "original" claimed that her fictional double, falsely depicted in the bestselling novel as a sexually promiscuous alcoholic who drank on the job, defamed her. From a libel defense perspective, this drawn-from-life portrayal failed, in part, because the author (and former friend) included personal characteristics that made the plaintiff recognizable and mixed them with other traits that were false and defamatory but still believable.

Now back to your question. Are you sure you never identify the real person who inspired your main character? Can they be identified from their ethnicity, physical appearance, employment history, or other details found in your book? Is your friend a public official or public figure? If so, they have another hurdle to jump. Unless he can prove by clear and convincing evidence that what you wrote was deliberately or recklessly false, there's a good chance - but no guarantee - you'll be excused from liability under what's known as the "Actual Malice Standard."

When Fiction & Reality Collide

Merely changing the name of your friend isn't enough. You might consider transforming him beyond recognition. Why? Courts consider plausibility. A broadly drawn caricature of your friend, which is difficult to reconcile with your ex-friend, can effectively stave off a libel lawsuit. For example, Kim Pring, a former Ms. Wyoming, sued Penthouse over an article that described Ms. Pring's ability to cause men to levitate by performing oral sex. Initially, the Federal District Court found for Miss Pring, awarding her $26.5 million in damages. However, the Court of Appeals reversed the decision on appeal, holding that no reasonable person could believe what was described were actual facts. Be outrageous. Libel will not be found if the reader accepts the novel as pure fiction. Parody – if done correctly, can take the chill out of free speech. [Note the italicized "if"]. If done improperly and the hypothetical reasonable reader thinks your failed parody conveys actual facts, the First Amendment may not be available to you. "Obvious cues" like levitation or time travel can help telegraph what is First Amendment-protected fiction from fact. When in doubt, have the book vetted by a publishing attorney.        
     

Here's a run-down of a few techniques that can minimize the chance of getting sued for libel in fiction: (a) use disclaimers (more about that later); (b) disassociate the doppelgänger from their real-life counterpart by writing composite characters; (c) depict but do not disparage, and (d) wait for the real-life person to die before publishing your fiction. Under U.S. libel law, if the original is dead, the estate cannot sue for libel (unless the suit was begun while the deceased was still alive). If (d) gives you an additional reason to outlive your literary prey, consider it my gift to you. And remember, he who laughs last laughs best. About option (d), revenge is best served cold at your publication party -- preferably with a Sauvignon Blanc, Riesling, or Gewurztraminer. 

Disclaimers, while helpful, are, by nature, self-serving. While a disclaimer cannot insulate you from a libel suit, it may support the defense that identification with the real person in your work is unreasonable. The words "A Novel" in the subtitle of a book are considered by some to be the best form of disclaimer. In addition, a full disclaimer should appear on the reverse title page of your novel or be skillfully integrated into the introduction or preface of your book. Closing credits in a motion picture might read: 

"Certain characters, characterizations, incidents, locations and dialogue were fictionalized or invented for purposes of dramatization . . . [W]ith respect to such fictionalization or invention, any similarity to the name or to the actual character or history of any person . . . or any product or entity or actual incident, is entirely for dramatic purposes and not intended to reflect an actual character, history, product or entity." [Closing credits to Martin Scorsese's The Wolf of Wall Street.]

Change the physical characteristics of your main character enough to disguise their identity. The risk of being sued is reduced if your characters are likable and honest rather than vicious unscrupulous miscreants. While it's tempting to retaliate against those who have injured us in print, if a character drawn from life isn't likable and you can't support that depiction with sufficient evidence, fictionalization or rewriting becomes essential.    

Create your own Frankenstein monster - a single character stitched together from a combination of personalities, physical traits, and biographical details of others. A composite character provides evidence that no real person was portrayed - or defamed. If the fictional other is not "of or concerning" an identifiable person, you have a viable defense to libel.    

I would be remiss if I did not bring up three other legal threats all writers face. First, defamation lawsuits can be triggered by misidentification. The law of defamation is not concerned with who you intended to target but who gets struck by your barbed arrow. Unintentional defamation is actionable. "Woops!" is not a viable defense. From a legal perspective, where the arrow lands - not where you intended it to fall - is what matters. Lawyers who vet, and writers who write, need to watch out for same-named individuals who are falsely but believably misidentified. 

While the publication of truthful information is generally considered a complete defense to libel, private individuals can still sue for highly offensive or embarrassing truths. So, if your book goes too far and reveals intimate areas of a person's life – intimate matters concerning their sexuality, family life, medical procedures, and mental (in)capacity – you may invite a right of privacy claim. Are there defenses? Yes, but that's beyond the scope of this post.

The right of publicity involves the unauthorized use of a person's name or likeness for commercial gain. It is related to the right of privacy. Fortunately for novelists, courts historically construe publicity rights narrowly due to free speech considerations. But that's the subject of another Q&A.

If you feel uncomfortable with the legal minefield of libel, right of privacy,  and right of publicity law, consult a media law or publishing attorney. They will review your manuscript for potential liability and suggest ways to mitigate or avoid many risks associated with writing about real people and actual events.


Disclaimer: This article discusses legal issues of general interest and is not designed to give specific legal advice concerning specific circumstances. Libel law is fact-specific, and national consistency is lacking. Each state applies that state's law within its own borders provided it does not conflict with  Constitutional law as interpreted by the Supreme Court of the United States. Many countries do not recognize the protections the U.S. gives authors and publishers. We strongly advise you to obtain professional legal advice before acting upon any of the information in this blog post.

(c) 2016. Updated 2020.

Resources
Smith v. Stewart (Red Hat Club Case)
Pring v. Penthouse
Bindrim v. Mitchell (case ended badly for the author) 
Carter-Clark v. Random House (Court of Appeals)
Carter-Clark v. Random House (Supreme Court)


Libel in Fiction Quotes

"I don't get hurt or bleed; hair doesn't muss; it's one of the advantages of being imaginary." 
    - Ted Baxter in The Purple Rose of Cairo

"All literature is gossip." - Truman Capote

"Novelists are inspired gossips." 
    - Margaret Drabble

"But we are the sum of all the moments of our lives---all that is ours is in them: we cannot escape or conceal it. If the writer has used the clay of life to make his book, he has only used what all men must, what none can keep from using. Fiction is not fact, but fiction is fact selected and understood, fiction is fact arranged and charged with purpose."
    - Thomas Wolfe's Preface to Look Homeward Angel

What Every Author and Publisher Should Know About Media Liablity Insurance

By Lloyd J. Jassin & Steven C. Schechter

Publishing can be a risky business. 

 

Copyright infringement, defamation and invasion of privacy are just three of the media perils that authors, writers, bloggers, and publishers are exposed to. 

In addition to becoming familiar with fair use (a defense to copyright infringement), and clearing rights to preexisting materials when permission is required, you can reduce personal and business risks with author and publisher liability insurance.

 

Unlike comprehensive general liability policies, media liability policies cover 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, as well as a number of other media perils. Most of these policies also cover the costs of defending a lawsuit, including attorney's fees and court costs.

What Should I Look for in a Media Perils Policy?

Insurance policies vary widely. It is important to emphasize your comprehensive general liability policy almost never protects you against the types of claims discussed in this article. However, if you are sued, or threatened with a lawsuit, your attorney should consult your policy to ascertain the scope of protection - if any - offered.  Keep in mind as well, that if your publisher is sued, the indemnity clause in your publishing agreement will make you responsible for legal defense costs, as well as for any settlement or damage award. 

In the following section we discuss what questions you need to ask when shopping for a media perils insurance policy.

1. Does the Policy Cover Attorneys' Fees?

Determine if the policy provides coverage for legal fees and defense costs, as well as payment of damages. Some policies have defense costs within the limit of liability, while others offer defense costs in addition to the limit of liability. Defense costs outside the limits of the policy provide broader coverage.  Other policies require you to obtain approval before incurring any attorneys' fee or expenses. It's also important to determine whether the policy requires the insurance company to defend a lawsuit against you.  If it does, you can save a tremendous amount of money in legal fees.  A secondary concern is whether the policy will allow you to choose your own defense counsel. 

2. Does the Policy Cover Punitive Damages?

Another key point to investigate is whether the insurance policy covers punitive or exemplary damage awards. Some states, such as New York, do not permit insurance companies to insure you against punitive damages. Because an award of punitive damages may be substantial (sometimes even more than actual damages and attorneys' fees), where permissible, you should make sure that your insurance policy will cover any punitive or exemplary damage award. 

3. Does the Policy Require a Lawyer's Opinion?

Many insurers will not issue a media risks policy unless the publisher, or author, provides an opinion letter from a publishing attorney analyzing the risks of a lawsuit. While the cost of hiring a publishing lawyer to vet your manuscript can be significant, it is another form of insurance in and of itself.  However, it is a cost that should also be taken into account when comparing policies and their rates.

While more common when insuring a film production, some policies will not insure the title of a work unless they receive a lawyer's title report.  While titles are not protected by copyright law, some may fall under the rubric of trademark law, especially titles that evoke an established brand, thus, creating a likelihood of confusion as to source or association with that brand.  Therefore, the cost of obtaining a title report should should be taken into consideration when shopping for coverage.  

4. What Types of Claims Are Covered?

It is important to speak with an insurance broker familiar with this type of coverage to find out exactly which types of claims are covered and which are not. For example, some policies cover claims of intentional infliction of emotional distress or misappropriation of ideas, while others do not. Other insurance policies offer optional coverage, for an additional fee, for claims for bodily injury or property damage resulting from negligent advice or instructions.

All writers and publishers should obtain a policy that covers, at a minimum, claims of libel (written defamation) slander (spoken defamation), invasion of privacy, violation of the right of publicity, copyright infringement, trademark infringement and unfair competition. Obviously, the more types of claims covered, the better the policy. Many insurance policies exclude certain claims, such as those alleging intentional or malicious acts, from coverage. It is important to find out what types of claims are excluded, as you will bear the cost of defending excluded claims yourself.

5. Which Versions of the Work Are Covered?

You should investigate whether the insurance policy will cover more than one version of your work. If your work will be published in hardcover, paperback, traditional eBook and multimedia form, make sure the insurance policy covers all of those versions.  Additionally, find out whether the policy covers condensed versions, serializations, audiobook and other versions of your work. Similarly, you should find out if coverage extends to book jackets, flap copy, press releases, advertising and promotional materials (including catalog copy and companion blog),  interviews and personal appearances.

6. Where Is the Policy Effective?

It may seem like a simple question, but many policyholders fail to ask whether their policy covers claims outside the United States. Most insurance policies cover claims only brought in the US. If your work is going to be distributed outside of the United States, you'd better make sure that your insurance policy will cover claims and lawsuits brought in any country where your work is sold, or translated.

7. Is the Policy a "Claims Made" or "Occurrence" Policy?

There are two types of insurance policies: "claims made" policies and "occurrence" policies.  An occurrence policy offers broader coverage.  A "claims made" policy covers claims made during the policy period, whether or not the actual activity which gives rise to the claim occurred before the policy came into effect. An "occurrence" policy covers material published during the policy period.  If your policy is a "claims made" policy, and a lawsuit or claim is brought the day after your policy expires, the insurance policy will not cover the claim even though the acts giving rise to the claim occurred while your policy was in effect. Alternatively, with an occurrence policy, it doesn't matter when the claim is made. As a rule, you should avoid "claims made" policies.

8. Settlement

As an author or publisher your freedom of speech or press rights are protected under the First Amendment of the United States Constitution, as well under most state constitutions.   Therefore, it's important to ask the broker if the policy gives you input into the selection of a qualified First Amendment or media defense counsel. 

Insurance Policy Prices

The premiums for media insurance policies vary depending a number of factors, including the amount or limit of protection you elect.  The premiums generally take into consideration several additional factors, including:

Whether you consulted a qualified publishing attorney. Most insurers allow rate card credits to authors and publishers who have their manuscripts reviewed by an experienced publishing attorney.

The type of book. For example, the premium for a science-fiction novel will be less than that for an investigative report, unauthorized biography, or roman a clef, which might result in a lawsuit for defamation or invasion of privacy.

Whether releases and permission forms have been secured, and if their scope cover all the uses, versions and editions of the work during the term and throughout the territory in which the work will be exploited.      

Whether you've cleared the title of the book.

Whether any claims have been threatened.

The amount of coverage sought and the deductible. As coverage goes up, so do the premiums, but as deductibles go up, premiums go down.

The writer's experience and reputation.

If you are a publisher, the adequacy of the author or other contributor's contractual representations and warranties as to originality of content and factual accuracy of information.  

The use of appropriate disclaimers.

          The revenues you expect to derive from the sale of your work.  

If you are an author, you can ask your publisher to name you as an additional insured under their media perils policy, if they carry one.  However, don't be lulled into a false sense of security, as these policies often have very high deductibles, which are used to lower the publisher's insurance costs. 

If there is already a claim made against a book, an insurance company may refuse to insure you, or exclude the preexisting claim.   For this reason, think twice about publishing all or part of the book online, or in a magazine or newspaper before the official book is published.

INSURANCE CHECKLIST

While not an exhaustive list, here is a checklist of points to raise with the broker when shopping for a media perils policy:

          What types of claims are covered?  

     

          What is the period of coverage? 

What is the deductible and the limits of coverage for each claim? 

Are legal fees and defense costs covered separately or in addition to the maximum policy coverage? 

What are the conditions for coverage, i.e., is prepublication review and an opinion letter by an attorney required? 

Who is covered (publisher, author, or both)? 

Is there an additional charge or fee for naming an author as an "additional insured" party? 

Are lawsuits outside the United States covered? 

Is the policy a "claims made" policy or an "occurrence" policy? 

Does it cover translations or other editions of the work (e.g., mass market paperback, trade paperback,  eBook versions, etc.)? 

Are punitive damages covered? 

Do you have the right to have your own attorney represent you or does the insurance company require their attorney? 

Can the insurance company settle a case without your approval or do you have the right to approve settlements?

Resources

Organizations such as the Authors Guild and National Federation of Press Women, offer its writer members affordable media perils insurance policies. If you are a small independent publisher, contact the Independent Book Publishers Association (IBPA). 

 

Related Blog Posts

 

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD J. JASSIN is a New York-based publishing attorney and entertainment lawyer in private practice. He is co-author of the bestselling Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Lloyd J. Jassin, The Paramount Bldg, FL 12, 1501 Broadway, New York, NY 10036, Tel: (212) 354-4442, email: jassin@copylaw.com. Follow him on Tweeter:  https://twitter.com/lloydjassin

STEVEN C. SCHECHTER is a media and entertainment law attorney based in Paramus, NJ, and co-author of The Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Steven C. Schechter, 36 Farview Ter, Paramus, NJ 07652, Tel: (201) 880-9818, email: schechter@medialawyer.tv

Writing About the Dead

While the dead cannot be defamed, those left behind—such as family members or associates—can pursue legal action over perceived injury to their reputation. This article provides tips for minimizing legal risks when writing about the deceased.

How 'Look Inside the Book' Previews Increase Legal Risks for Authors

Joseph Iseman, a former partner at the law firm of Paul, Weiss, Rifkind & Garrison, once advised Peter Schwed, the editorial director of Simon & Schuster, that preparing an index for any nonfiction book was a dangerous activity if any of the characters were still alive.

In his autobiography, Turning the Pages: An Insider's Story of Simon & Schuster, Schwed explained Iseman's reasoning.  "Anybody who thinks he is likely to be in a book but doesn’t intend actually to read it is likely to scan the index to see if there are any references to him." 

Amazon's Look Inside the Book feature, which allows potential customers to preview a book's content before making a purchase, has made Iseman's advice to omit the names of living individuals from the index a relic of a pre-internet age. Whereas, in the 1990s, you could still minimize the chances of getting sued for libel by omitting an index to your book, there's no hiding in today's digital world.

Rest in Peace? Libel Law and the Deceased

Under U.S. law, the dead cannot be defamed. However, a person's estate may continue to pursue a defamation claim filed before death.  

Here are some strategies for minimizing legal risks when writing about the dead: 

(a) Consider the Deceased's Family. While the dead cannot be defamed, be careful about making unsupportable accusations about the living—their family, friends, and associates. Unlike the dead, they can fight back.

(b) Utilize Disclaimers. A prominent disclaimer stating that your work is fiction or that certain elements are fictionalized may help deter claims by the living. Still, as explained below, it is not an impenetrable shield against defamation.

(c) Fictionalize. Changing names, locations, and certain details can help minimize claims. However, even if labeled as fiction, if someone closely resembles a real person in ways that make them identifiable to others, that person may have grounds to sue for libel.  

(d) Truth. Truth is an absolute defense against defamation claims. If the statement can be proven true, it cannot be considered libelous, even if it harms someone's reputation. 

The most foolproof strategy for minimizing libel claims is to wait for your literary prey to die. As the old saying goes, "He who laughs last laughs best. Revenge is best served cold at your publication party—preferably with a glass of Sauvignon Blanc, Riesling, or Gewürztraminer.

*A handful of states as of this writing, including Colorado and Georgia, have criminal libel statutes that allow the dead, i.e., their estates, to sue for libel.  In Colorado, any statement "tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred contempt or ridicule,” can get you into hot water if writing about a private individual.  For more information about criminal libel, click here.

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Related Articles 

• Legal Consequences of Using Real People in Fiction
• When Can I Legally Use, Repurpose and Publish Without Permission? 
• How to Choose a Book Title and Not Get Sued
  

DISCLAIMER / TERMS OF USE

Not Legal Advice. The information contained in this blog is intended as general advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information published here. Be aware that the law may vary from state to state. Therefore, this blog cannot replace the advice of an experienced attorney. No attorney-client relationship is created by your access to or use of this website. Contacting us by email does not create an attorney-client relationship. If you wish to establish a professional relationship, it must be done through a mutual agreement in writing. Please do not send us any confidential information until an attorney-client relationship has been established.

Attorney Advertising. While intended as general advice, this blog and its contents may be considered attorney advertising under the rules of certain jurisdictions. Hiring an attorney is an important decision and should not be based solely on advertising. Past results are no guarantee of future results.

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Links. This website contains links to third-party websites and other resources. These links are provided solely for your convenience and for educational purposes. They should not be construed as endorsements by the Law Offices of Lloyd J. Jassin.

Jurisdiction. Using this website, you have irrevocably agreed to the U.S. federal and state courts' sole and exclusive jurisdiction and venue in New York City, USA. Any action, suit, or proceeding involving the use of this website, the information contained in this website, to the extent permitted by federal law, will be governed by the laws of the State of New York (excluding New York's choice of law rules) in the absence of applicable federal law.

 

Ask a Lawyer: Do I Need an Interview Release?

["Ask a Lawyer" appears in The Huffington Post. The "Q" to my "A" is  Jeff Rivera, 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't 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, free speech, fair use, and implied consent defenses may insulate you against specific 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, 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, the law will hold you to your promise if the interviewee limits how or where the interview may be used. 

 

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 defamation 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 a person's name, likeness, or voice. However, 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 makes it difficult for a celebrity to bring a successful claim for invasion of the right of publicity and libel.   

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 permission. Finally, as a defense to copyright infringement, fair use allows courts to avoid rigid application of copyright law where the strict 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. 

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I Shall Be Released, performed by Bob Dylan
 

 

 

Image:  Parade of Horribles and Antiques, Portland, Maine

Photographer:  Unknown

Year:  1920

Credit: Main Historical Society

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Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors 

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.