Recently, I completed a weekend intensive freelance writing course at UPOD Academy with David Hochman. I met a remarkable group of accomplished writers who have inspired me to write about the legal issues freelance writers and journalists face. Over the next few weeks, I will address these issues to help writers understand the many laws and ethics they should adhere to whether writing for the New York Times, a blog post for a website, or their own creative projects. The first topic up…the interview release.
At some point, a story requires interviews. Maybe we need to interview a Navy SEAL, gain a deeper understanding of autistic children, fill-in a few plot facts, or add perspective and objectivity to our story. We write down quotes and opinions, obtain pertinent research information, or receive letters and photos. While most of the information we collect from third parties might only be used to craft a better story, often snippets of the collected information are woven right into the work. If so, then you should consider having your interviewee sign a release.
Why is a release necessary
I would venture to say most writers neglect to obtain signed releases of the people they interview. I admit I have let the release slip before. Often we do not have the ability during a Skype interview to get a release signed. The interview might be about general topics related to the plot that most likely will not end up on the page. Sometimes we assume consent has been given if we identified ourselves as a writer to the interviewee, explained the current work-in-progress, and how the information would be used and published. They agreed to be interviewed. So, what is the problem, right?
Whatever the reason for not getting a signed release, interviewing a person without a release only leaves the writer vulnerable to a lawsuit for defamation and invasion of privacy, especially if the material obtained and used is sensitive, controversial, or printed verbatim. The interviewee might not object at first when interviewed, but that tune could change once he sees the publication and thinks the work defamatory. Maybe the writer used a partial quote, making the interviewee’s words misleading. Maybe the writer revealed facts the interviewee thought would remain private. Regardless, if the writer had a signed release, consent would be an absolute defense. The interviewee by consenting to the publication has waived the right to sue.
While it is always good practice to secure written permission to use materials gathered during an interview to avoid a lawsuit, another good reason is the publisher. Whether the work is a book or periodical, essay or news article, publishers will request the writer provide any and all necessary releases and permissions prior to publication. Such contract language can be found in the warranties and representation clause of the contract.
Get an interviewee’s consent in writing
Let me say that again. Get consent in writing. Some state statutes will enforce oral consents, but be aware such consents are often difficult to prove, even if you have it recorded, and can be revoked, depending on the state.
How broad a release is needed
Should the release be limited to a particular publication, like the book or magazine article? Should it be limited to the specific facts obtained in the interview? What about derivative works from the publication, like an audiobook or movie? What if the work will be republished in a different form or translated into a foreign language? Whatever the scope of consent, the writer and publisher will be bound by it. The use of the material outside the scope could mean liability for invasion of privacy. The broader the release, the greater flexibility for you and your publisher.
Aim for language that covers consent to use the collected material so you not only avoid potential claims of libel or invasion of privacy but also can commercially exploit the work. Likewise, the breadth of the release must be broad enough to cover the warranties and grant of rights in the publishing contract. If not, a gap in rights will exist, meaning the writer will be in breach of contract and could be setting both writer and publisher up for potential litigation.
If there are documents, photos, or letters provided in the interview, the release should cover the use of those tangible items. Securing rights for such things can be complex. For example:
- If there are joint authors on a document, both may have joint rights in the copyright. A release from both authors will be necessary.
- For photographs or letters, just because you have a physical copy of a photograph or letter does not mean you have the right to use the contents of the letter or republish the photo unless you have consent. Likewise, you may need a release from the photographer or the author of the letter, if it is not the interviewee. You may also need a release from other people in a photograph who are not the interviewee. Everyone has a right to privacy, so take note and acquire the necessary rights of others if needed. If you need more information on defamation and invasion of privacy, see my earlier article on the topic.
Interview releases are relatively simple one-page agreements. If you search Google for interview release forms, you will find a number of examples. Some are narrow. Some are broad, like the example interview release form at the end of this article.
A few more points to consider
- The best practice when interviewing someone is to record the interview, especially if you are using quotes, or the material is controversial or sensitive.
- It tends to be easier to obtain a release when the interview is conducted, rather than months or years later.
- An interviewee may want the right to read or edit the material used in the work before publication. They might want certain material removed. They might want to keep certain facts private. They might want anonymity. Whatever the request, you can easily add it to the basic agreement. Be aware that if you breach the contract, like not following the request to keep something private or the interviewee’s identity confidential, you could be sued for monetary damages.
- If the interviewee is under 18, parental consent is needed.
- If you are going to acquire life story rights for commercial exploitation you will need a more comprehensive agreement than a one-page interview release. See my article on securing life story rights for more information.
Interview Release Agreement
I, [insert name of interviewee] (“Interviewee”), understand and acknowledge that [insert name of writer] (“Author”) is researching and writing about [insert subject of the work], tentatively titled [insert title of book, magazine article, or specific work] (“Work”), for the purpose of publishing the Work. Author has requested an interview with Interviewee and that Interviewee coöperate with Author in connection with the Work.
In order to aid Author, Interviewee consents to be interviewed and provide information and other materials to be used in connection with the Work, including personal experiences, remarks, incidences, quotes, dialogue, scenes, situations, characters, and recollections, as well as any documents, letters, and photographs that Interviewee thinks pertinent to the Work and interview (“Interview Materials”).
Interviewee grants and assigns to Author and Author’s licensees, successors, and assigns the following rights in connection with the Interview Materials for use as part of the Work, in perpetuity and throughout the world.
- The right to quote or paraphrase all or any portion of the Interview Materials, and to generally use and publish the Interview Materials.
- The right to use, fictionalize, and depict Interviewee’s name, image, voice, likeness and biographical data in any manner Author deems appropriate for the Work.
- The right to develop, produce, publish, distribute, market, advertise, promote, or otherwise exploit the Work, in and any and all editions, versions, revisions, languages, media, and derivative forms or uses, in any manner that Author deems appropriate. Interviewee understands and acknowledges that Author will be the sole owner of all copyrights and other rights in and to the Work.
Interviewee waives any right to inspect the Work. Interviewee further waives any claim in connection with the above-mentioned use or uses, including any claims relating to the right of privacy, the right of publicity, copyright, defamation, confidentiality, or any other right.
In consideration for the opportunity to assist Author with the Work, Interviewee acknowledges and agrees that Interviewee is not entitled to receive any form of payment from Author and/or Author’s licensees, successors, and assigns. Interviewee represents and warrants that Interviewee has full right, power, and authority to execute this agreement.
Agreed and confirmed:
__________________________
Interviewee’s signature and date
__________________________
Interviewee’s name (print)
__________________________
Author’s signature and date
__________________________
Author’s name (print)
Photo credit: boellstiftung | VisualHunt | CC BY-SA
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.