PUBLISHED JUNE 1997
by Ivan Hoffman, Publishing Attorney —
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 or periodical. This information may be words, photographs, biographical background, or other material. Since we all have rights of privacy, it is necessary in most instances to obtain from the person interviewed some form of release 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 breadth of rights that the author may need in order to satisfy the author’s representations, warranties and grants to his or her publisher. 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 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 to the publisher, the author may be in breach of the author’s contract and may put both the author and the publisher in a serious legal situation.
Some of the issues faced in the release follow.
The Scope of the Rights Obtained
If the release merely allows the author to use the interview in a book or magazine that the author is writing, that may simply be inadequate for the subsequent uses, even assuming that it satisfies the immediate issues about the scope of rights obtained compared to scope of rights granted. 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 if it is reposted on the Internet in the form of an electronic database, or becomes part of a CD-ROM, 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.
Perhaps on a more esoteric but still commercially important level, 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 magazine, for example, does not imply the right to make a CD-ROM out of it and/or to 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.
Also to be included should be the right to do foreign language versions of the book and/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 foreign language rights for the book, this does not imply any grant to a foreign language electronic database 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 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, privacy rights, 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 are or 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.
Ivan Hoffman is a publishing, copyright, Internet law, recording, and music attorney as well as a published writer and author. He practices in the Los Angeles area. You may reach him at email@example.com or 818/342-1762.