Do you need permission to write a book based on your interviews with public figures?
Hi, I'm entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your career to the next level.
So, Stephen has been interviewing some celebrities, and plans to feature their remarks, stories and such in a book he's writing.
Some of the interviews are in-person, sit-down type discussions, and some are being done by email, with the celebrities writing their answers to the questions themselves.
Does Stephen need to have to have these folks' permission to include them in the book? Do they have to sign a release form? Even if they write the answers themselves?
A: As you probably realize… Celebrities can and do sue when their names or likenesses are used in a way that creates a false endorsement or implies some kind of sponsorship or approval of the material. Now, in the case of an interview included in a book, it's probably not a commercial use that would give rise to a Right of Publicity claim, but a celebrity with a smart lawyer will probably claim that even though there was consent to the interview, you used it in a way that wasn't authorized… So that's a breach of contract, or even a Fraud claim. And, if the celeb actually wrote the words you used… That could mean a copyright infringement claim.
Sure, you have a bunch of defenses… Free Speech, Newsworthiness of the content, Fair Use (of copyright material), and there's always the alleged consent. But unless you have something in writing, you're going to be fighting an uphill battle.
Written consent is always the best defense. It's your “get out of trouble free” card when these claims, however frivolous they might be, come along.
But written consent isn’t always possible. Lots of folks get leery when presented with a release form to sign… So, if you're recording the interview (again, in most states you need consent to do that), you should record the person saying “yes” in answer to your request.
So, if it was me, I'd start the recorder, and say, “I'm Gordon Firemark, and today is July 3rd, 2015. I'm recording this interview with Suzy Starlett. Suzy, you understand that I'm recording this interview, and you consent to me using this recording as part of my book (which is tentatively entitled “homely Hollywood harlots” and in all other media and languages, everywhere in the world, forever?”
Make sure the recording can hear and see (if it's video) that the person is giving consent.
Now, if the person you're interviewing a true public figure, someone who's in the public eye because of their work, or other events they've participated in, you are probably OK, even without the consent, because the First Amendment provides protection, at least against the privacy kinds of claims. But do yourself a favor… Get the consent.
Now, in the situation where the celeb is writing the responses him or her self, you absolutely MUST get written permission to use it. Without it, you won't be able to publish your book.. Publishers will insist.
Interestingly, the question of who owns copyright in an interview is a subject of some controversy. The copyright office has said that it's two copyrights. The interviewer owns the questions, and the subject owns the answers…. Again, unless you have something in writing, or some other proof of the consent, and authorization to use the thing. So, just avoid any doubt about things… get a release. In writing, if at all possible.
And by the way… This same advice goes for anyone creating any kind of media. Blogs, podcasts, YouTube videos… If you've got other people's stuff (whatever kind) in your content… You need to have a release to prove you're free to use it.
For a free downloadable version of that oral release I just did, head over to https://firemark.com/interviewrelease
And to get your question answered here, just hit me at https://firemark.com/questions.
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