Saturday, January 29, 2011

Good Fences: When and Why Co-Writers Should Have Collaboration Agreements

Good fences make good neighbors.  If you and another writer are working together on a substantial work, you should consider entering into a collaboration agreement.

Realistically, you are probably not going to write up an agreement for every small joint project you do.  If you are co-authoring a magazine article that is likely to appear one time and earn you $500 at best, a written agreement with your partner might be overkill.  But if you are embarking on a book-length work or a screenplay that will consume hundreds of hours of your time or that you hope will earn a truly interesting sum of money, it would be a mistake not to put a collaboration agreement in place.  Similarly, if you and a co-writer work together on a series of short works (e.g., a song-writing team, co-authors of a regular column) a collaboration agreement could turn out to be the most important legal document you ever sign -- or don't sign -- relating to your writing.

The lawsuit over the musical Rent illustrates how a collaboration agreement could spare writers and their heirs a lot of headaches and a lot of money spent on legal fees. At age 29 or so, Jonathan Larson (from my town, White Plains, New York) began work on what ultimately turned out to be one of the most highly acclaimed Broadway hits of its era.  Along the way, he enlisted a playwriting professor and dramaturg, Lynn Thomson, to help prepare a version of the show for an off-Broadway production.  Thomson had a written agreement with the non-profit theater that was producing the show, but not with Larson.  Larson died an early death while the show was in dress rehearsals.  The musical was an off-Broadway success and, when it was about to move to Broadway, Thomson approached Larson's estate seeking a percentage of the royalties and a credit.  When negotiations broke down, Thomson sued.  In the end, Thomson lost at trial and the verdict in favor of the Larson estate was affirmed on appeal.  (Read the court of appeals decision here, which explores, among other things, the arcana of when a "joint work" is created under the Copyright Act. I used to work with and now follow on Twitter one of the lawyers who handled the litigation @amygutman.)  Suffice it to say, a written agreement between Larson and Thomson would have been very wise for all concerned.

Every collaboration is different, and no one agreement is suitable for all writing relationships.  At a minimum, you should consider addressing these questions.

1.  Who are the  parties to the agreement?

2.  Who will own the copyright in the resulting work?  Do you intend to be "joint authors," which has a number of default implications regarding who can license the work to others and how the revenues would be shared, unless you reach a different written understanding?  Or do you intend some other kind of relationship?  A work made for hire?  An assignment of the entire copyright interest to one of  you?  Your decision regarding authorship will also need to be reflected in the copyright registration application. (See this prior post on the basic nuts and bolts of copyright protection.)

3.  How will the work be credited?   Whose name will be first?  Will it be styled: "you and  me," "you  with me," "by you as told to me," or will I be a completely invisible ghost?

4.  How will the revenues and expenses be divided?  Will one of you receive the money and pass it through to the other (usually a bad idea for the "other")?  Can each of you incur expenses that will be reimbursed from the revenues?  Who is going to shell out the cash needed for any permissions fees?

5. What responsibilities will each collaborator have on the work and what are the due dates for each contribution?

6.  Who will made the decisions on how to exploit the work:  selecting an agent, choosing a publisher, deciding whether to accept financial terms, etc.?  Will such decisions be made jointly?  What happens if you disagree?

7.  What happens if you can't sell the work or one of you doesn't uphold your end of the bargain because of illness, death, competing obligations, laziness, incompetence?  How will you terminate the relationship?  What rights, if any, will each of you own in the work?

Anticipating what happens if the collaboration fails is every bit as important as (or perhaps more important than) anticipating what happens if the relationship is a roaring success.  One of the model agreements linked to below, takes this approach:
If a Collaborator is unwilling to continue or complete work on the Work, the Collaborators shall enter into a written agreement setting forth the rights of the withdrawing Collaborator, including what authorship credit, compensation and copyright ownership, if any, shall be shared with the withdrawing collaborator. The remaining Collaborator shall have the right to complete the work alone or with others. 
In the event that either Collaborator dies or suffers a disability that will prevent completion of his or her respective portion of the Work, or of a revision thereof or a sequel thereto, the deceased or disabled Collaborator shall receive payments pursuant to Paragraph 3 pro rata to the proportion of his or her work completed or, in the case of a revision or sequel, shall receive payments pursuant to Paragraph 3 after deduction for the cost of revising or creating the sequel with respect to his or her portion of the Work. Each Collaborator hereby agrees that the remaining Collaborator(s) shall have the sole power to license and contract with respect to the Work, and approval of the personal representative, heirs, or conservator of the deceased or disabled Collaborator shall not be required.
Another one of the model agreements takes this agreement-to-agree approach in the context of a collaboration on  a screenplay:
If, prior to the completion of the Work, either Party shall voluntarily withdraw from the collaboration, then the other Party shall have the right to complete the Work alone or in conjunction with another collaborator or collaborators, and in such event the percentage of ownership, as hereinbefore provided in paragraph 1, shall be revised by mutual agreement in writing.
(This clause obviously doesn't address death or other involuntary withdrawal, which could make it impossible to reach a new "mutual agreement.")

The point is to anticipate how best to handle the unwinding of the relationship so that the rights in your work are not consigned to perpetual limbo, if you go your separate ways.

8.  How and where are you going to resolve any disputes that arise between you?  Mediation?  Arbitration?  I'll meet you in court?

A collaboration agreement should be signed and dated by all parties.  Some contractual provisions relating to copyright and other matters much be in a signed writing to be enforceable.

I have often heard writers complain that negotiating a written contract with a collaborator oozes distrust and would threaten to sour the writing relationship.  But if you can't cooperate on crafting a simple agreement, the odds of your having a successful writing marriage are not so hot. And if you can't come to terms before you write your work, imagine the how dysfunctional your relationship will be if your work is wildly successful and you don't have a clear prior understanding about how the money and credit are to be allotted and how decisions about further exploitation of the work are to be made.

There are many examples of collaboration agreements on the web, including hereherehere, here, and here.  Again, every collaboration is different.  In all likelihood, none of these forms will be suitable for your work without modifications.  But these examples may help to get you thinking about what your own collaboration agreement should contain.

You could surely benefit from having a lawyer look at the draft agreement that you and your collaborator draw up. Indeed, the terms of your collaboration agreement could turn out to be more important than the terms of your publishing agreement.  But I realize that, because of the expense, a legal review is not always going to happen.  Generally speaking, memorializing your understanding with your collaborator in writing is better than not doing so -- even if you are unable to have a lawyer take a look at it.

There are useful good articles on the web concerning collaboration agreements, including this one by Lloyd Jassin.  The discussions in The Writer's Legal Guide and especially The Writer's Legal Companion can also assist you.

Tuesday, January 25, 2011

Can a Writer Be Sued for Libeling the Dead? (What Would John Dean Say?)

It seems that, whenever a notorious celebrity dies, tell-all biographies appear within a few months -- or even weeks -- filled with unflattering new disclosures.  One explanation for this phenomenon is (to quote Judge Robert Sack, the author of one of the two leading treatises on libel):
The dead have no cause of action for defamation under the common law, and neither do their survivors, unless the words independently reflect upon and defame the survivors. 
Rodney Smolla, the author of the other leading treatise, concurs:
There is no liability for defamation of the dead, either to the estate of the deceased or to the deceased's descendants or relatives.
The rule seems to be much the same under UK common law, as summarized in this piece from the BBC.

Furthermore, most U.S. cases have held that a plaintiff cannot make an end-run around the rule that "you can't defame the dead" simply by restyling her claim as one for invasion of privacy, intentional infliction of emotional distress (upon the surviving family members), or injurious falsehood.

Even though the law is uncommonly clear on this point, that hasn't stopped an occasional outraged relative of the dearly departed from suing. For example, in1981, Charles Higham wrote a biography of Errol Flynn in which he charged that the actor had been a Nazi spy. Flynn's daughters sued for defamation and invasion of privacy -- unsuccessfully.  In upholding the dismissal of the case, a California appeals court reaffirmed that ''defamation of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family or relatives who are not themselves defamed.''  A copy of the decision is available here.

At one time, the law was not so clear. See, for example, this 1931 article from Time magazine  And there are still a few disturbing wrinkles.  Judge Sack notes that several states, including Texas and Utah, have statutes that purport to define libel to include defaming the dead.  But, citing this Texas case, he concludes that, even in those jurisdictions:
successful defamation suits based on the defamation of the dead where there is no implied defamation of the living are apparently non-existent. 
Robert Spoo recently brought to my attention that there are also a few states, that continue to have antiquated criminal statutes on the books, some of which purport to prohibit defamation of both the living and the dead. In 1998, a federal court struck down one such law in Nevada as unconstitutional.

Doubtless there are abuses -- instances where writers make outrageous statements about the dead that they know to be false.  In response, a few commentators, including Raymond Iryami in "Give the Dead Their Day in Court", Lisa Brown in "Dead But Not Forgotten" (behind pay wall) and amazingly enough, John Dean, have suggested that enacting a civil remedy for disparagement of the dead might worth considering.  Indeed, the idea is not as far-fetched as I, for one, might wish it were.  Remarkably, in 1986, the New York State Senate passed such a bill, but it died a merciful death without being voted upon in the Assembly.  My own view is that such a law would be a staggering blow to biographers, historians, and journalists.

So what might writers take away from all this?

1.  The risks of a judgment being ultimately entered against a writer in the United States for libeling the dead are very close to zero.

2.  The risks of being sued for libeling the dead (or on some end-run cause of action) are very low, but not zero.  A defendant writer should ultimately win, but she might have to incur attorneys' fees in doing so.

3.  If you're writing unflatteringly about the dead in a work that will undergo a legal review by a book or magazine publisher, there is especially little to sweat.  The legal reviewer will presumably help you further minimize any risks and, if there were ever a suit, the publisher's lawyers would have the tools available to wage an exceedingly strong defense.

4.  As a practical matter, the deader the dead, the more improbable it is that there would ever be even a nuisance claim.  The few claims that have been brought tend to be by family members of the recently deceased (e.g., where the family contests a published report that a death was a suicide).

5.  As the quotation above from Judge Sack's book implies, there can be liability when a defamatory statement about the dead also reflects negatively on the living.  Take this statement:  "Before the cold-blooded killer, Fowler, was shot dead while fleeing from the police, he hid out for three days in his brother's apartment" (implying that the brother was an aider and abettor).

6. Truth, of course, is the ultimate defense to a libel claim.  So make sure you have your facts straight, whether you are writing about the living or the dead.  That said, there are times when fiction writers may artfully -- and lawfully -- "lie" about deceased historical figures that they have inserted into their novels or short stories.  (See this earlier post on libel in fiction and this cautionary post by a Writer's Digest blogger.) And that's just one of the reasons a "libeling-the-dead" statute is very bad idea.

Friday, January 21, 2011

What Are the Risks of Misquoting an Interviewee?

"Quotation, n: The act of repeating erroneously the words of another." (Ambrose Bierce, The Devil's Dictionary)

Unless a writer tape records her interviews, has mastered shorthand, or conducts her interviews by email, the questions and answers she publishes will rarely be a word-for-word transcription of what the interviewee said.  A writer should, of course, do her level best to record the interviewee's actual words. However, unless an interview is unusually adversarial, the interviewee will seldom complain about minor disparities in wording as long as you have accurately reported the facts and captured the essence, tone, and spirit of what the interviewee had to say.

Interviews give rise to some interesting issues of journalistic ethics:  Should you correct an interviewee's, you know, verbal tics and grammatical mistakes?  Should you publish a verbatim acount of your interviewee's distinctive dialect or convert his words into standard English?  The Associated Press says "no":
We do not alter quotations, even to correct grammatical errors or word usage. If a quotation is flawed because of grammar or lack of clarity, the writer must be able to paraphrase in a way that is completely true to the original quote. If a quote's meaning is too murky to be paraphrased accurately, it should not be used.
Journalists may worry about such things, but they are seldom, if ever, the stuff of lawsuits.

But beware of the man who claims that he has been misquoted in a way that makes him look bad -- unprofessional, bigoted, ignorant, malevolent, crooked, violent -- whereas an accurate quotation would have made him look like the upstanding citizen he believes himself to be.  And be aware that (inaccurately) putting words into your interviewee's mouth that diminish his reputation and expose him to "hatred, contempt, or aversion" can, in fact, be actionable.

As the Supreme Court explained in the the famous (to libel lawyers) case of Masson v. New Yorker Magazine:
A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not.
Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold.
Jeffrey Masson alleged that he had been the victim of the latter form of misattribution.  Masson is a noted psychoanalyst who was at one time the Project Director of the Sigmund Freud Archives. In 1982, Janet Malcolm interviewed him for a lengthy New Yorker profile, which was later expanded into a book, entitled In the Freud Archives.  One reviewer said that the book portrayed Masson "as a grandiose egotist — mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool."  Masson read it that way, too, and sued for defamation, primarily complaining that Malcolm invented a series of quotes that made him look unprofessional. Malcolm denied that she had done anything of the kind.  Here, The New York Times identifies the most famous phrases that Masson challenged:
In three of the five disputed quotations in the two-part, 45,500-word article, Ms. Malcolm wrote that Mr. Masson had said he hoped to turn Freud's home into "a place of sex, women, fun"; that two prominent psychiatrists considered him "an intellectual gigolo," and that he himself would one day be considered the "greatest analyst who ever lived."
Malcolm had tape recorded some of her interviews.  But she testified that she had taken handwritten notes of other conversations, which she believed that she had discarded after typing them up; it was during these unrecorded conversations that the challenged statements were made (according to Malcolm) or not made (according to Masson).

The case went all the way to the U.S. Supreme Court and back down again to trial. In all, there were five quotations at issue; a jury ultimately found that some of the quotes were substantially accurate, some were not, but none of the erroneous quotations was written with reckless disregard for the truth, the minimum level of fault that Masson, as a public figure, had to prove to establish liability.

So Masson lost.  (Here is the decision in the final appeal to the Ninth Circuit Court of Appeals.)  But the case nonetheless continues to stand for the proposition that an inaccurate quotation can give rise to a viable defamation claim.  Moreover, if Masson had been a private figure instead of a public figure, he presumably would not have had to show that Malcolm knowingly or recklessly misquoted him; mere negligent misquotation of a private figure (provided, again, that the misquotation induces an unsavory opinion of the misquotee) might be enough in some states to give rise to a viable claim.

So what can a writer do to avoid a Masson/Malcolm-style smackdown?

1.  As previously stated, do your utmost to get the quotations right.  The more inflammatory the quote, the more careful you should be.

2.  Consider tape recording interviews, especially if they are likely to be contentious.  But, remember, in many states, consent of both parties is required to tape a telephone conversation.  (The Reporter's Committee for Freedom of the Press has published a helpful state-by-state guide on the legality of taping telephone interviews.)  If consent to taping is required, it is a good idea to get the consent itself on tape.

3.  If you recall the gist of a statement, but are not confident about the wording, don't put the words inside quotation marks.  Report it for what it is:  your paraphrase of what was said.

4.  If you haven't taped an interview, and if you aren't certain that you have precisely captured the interviewee's words in your notes, consider inviting the interviewee to review the quotes before publication.  Many professional journalists are loathe to take this step, however, because interviewees will too often disavow making (or want to change) the tactless statements that they actually made. If the interviewer then publishes the quotation as she originally heard it, the litigious interviewee may claim that the interviewer was on notice that the quotation was false.

5.  Consider preserving your interview tapes and notes for a substantial period after the interview is published.  (In a later post, I will have some suggestions regarding how long writers should keep their contracts and source materials.)  A counter-argument can be made in favor of discarding notes; working journalists are rightly concerned that their notes could be subpoenaed, making them involuntary witnesses (a la Judith Miller) or eating up their time and their employers' money fighting the subpoenas.  However, this is seldom a concern for writers who are not covering hot news or doing investigative work.  In the end, there is no always-right answer to question: should I preserve or should I discard?  But, on balance, I would generally keep my notes.  (Janet Malcolm is evidently a preserver rather than a discarder; as reported in the Times article above, her two year-old granddaughter reportedly stumbled upon Malcolm's lost notebook many months after the Masson trial was over.)

6.  Reconstruction of quotations from long ago can be hazardous, too. Memoirists and autobiographers frequently recreate conversations that occurred years earlier.  But, if their memories are at all like mine, they could, at best, only hope to recall the gist of what was said.  Readers understand that the quotation marks around decades-old dialog are a literary convention, not the literal truth.  But that may not stop a quotee from claiming he had been Massonized if he believes that gist is inaccurate and disparages him.

7.  Take to heart the moral of this case against ABC: don't take quotations out of context.

8.  Consider whether an inflammatory quotation could be effective, even without naming the speaker:  e.g., "'Muslims aren't welcome in this neighborhood,' a local grocer said."

Ultimately, there is no call for paranoia.  Occasional inaccuracies in quotations are inevitable (see this long list of famous, but inaccurate, quotations -- some of them deliberate misquotations), but the vast, vast majority do not materially distort the essence of what the speaker said -- and therefore should not give rise to legal liability.

Saturday, January 15, 2011

Can You Tell Your Own True Story Even If It Impinges on the Privacy of Your Lovers, Friends, and Family?

Autobiographers and memoirists sometimes face thorny legal issues when they write about aspects of their own lives that are inseparably intertwined with the private lives of others.  Can a woman truthfully describe the intimate details of her sex life if, in doing so, she identifies her partner and aspects of his life (adultery, promiscuity, kinkiness?) he would prefer to keep forever secret?  Can a gay man write about his HIV-positive status if, in doing so, he effectively discloses that his partner is also infected with the virus?  The answer is an unsatisfying: "Sometimes -- provided it is done the right way."

Public disclosure of private facts is an aspect of the right of privacy that is actionable in some (but not all) states.  While the prerequisites vary somewhat from jurisdiction to jurisdiction, a plaintiff typically must prove:
(1) publicity was given to matters concerning the plaintiff's private life;
(2) the matters made public would be highly offensive to a reasonable person of ordinary sensibilities; and
(3) the matters publicized were not newsworthy, i.e., not of legitimate public interest.
The third element is often crucial to the defense of invasion of privacy lawsuits.  Fortunately, the mainstream media have had considerable success in persuading courts to find that their disclosures of otherwise private facts are protected because they shed light on important aspects of the human condition.  The courts are especially likely to cut authors and publishers some slack in accounts that touch on the private lives of public figures.  But the courts have also often found that even disclosures of private facts about private figures qualify as newsworthy.   Sometimes, however, newsworthiness is a close call.  And, as University of Georgia law professor Sonja West explains in this law review article entitled The Story of Me, the courts' focus on whether a disclosure of private facts is "newsworthy" is arguably misguided.

Anonsen v. Donahue is one of a few interesting cases that have taken a different approach.  The dispute arose out of an appearance by Miriam Booher on The Phil Donahue Show in January 1989.  During the course of the program, Booher disclosed that her husband had raped and impregnated Nancy Anonsen, her daughter from a past marriage, when Anonsen was 11 years old.   Booher and her husband then adopted the baby boy born from the incestuous relationship.  Prior to Booher's appearance on the show, the family had never reported the crime to the authorities or publicly disclosed the events.

As touched on in a prior post, a highly-charged statement of this sort potentially implicates two separate, but interrelated areas of the law.  If the statement was false, Booher would have run the risk of a libel suit from her husband.  On the other hand, if the statement was true, she ran the risk of a claim for public disclosure of private facts.

Anonsen and her son acknowledged that the statement was true; they sued their mother/grandmother, Phil Donahue, and his production company for public disclosure of private facts. Anonsen and her son argued that, even though Booher did not mention their names on the show, by disclosing her own true name to a national television audience, Booher had inevitably revealed the family's nightmarish private tragedy to everyone who knew Booher's relationship to them.

Analyzing the three elements of the claim under Texas law, the court had no problem concluding that the crimes of incest and rape are newsworthy matters of legitimate public interest, but, in the judge's view, that did not necessarily mean that the (albeit indirect) disclosure of the victims' identities was a matter of public interest.  But, importantly, the court reasoned:
We do not believe that the issue of newsworthiness of the parties' identities . . . is relevant to the ultimate inquiry before us: whether Booher had the right to reveal her own identity.
Ultimately, the court concluded that:
to allow a cause of action based upon Booher's truthful and undisguised account of her own and her family's experience is inconsistent with the first amendment. 
A Massachusetts court adopted the Anonsen approach, at least in part, in Bonome v. Kaysen.  Susana Kaysen, the author of Girl Interrupted, also wrote a memoir about her post-teen life entitled The Camera My Mother Gave Me in which she recounted in intimate detail her then-live-in boyfriend's alleged abusive response to her refusal to have sex with him when she was suffering from a painful medical condition.  Although he was not named in the book, the boyfriend sued for invasion of privacy, arguing that many people knew that he had been Kaysen's companion and understood that Kaysen was referring to him.  The judge dismissed the claim, finding that the disclosures were a matter of legitimate public concern.  But he also went on to say that:
In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story-- which inextricably involves Bonome in an intimate way . . . . it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this  case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident thereto.
I cannot overemphasize that publishing private facts about others carries significant legal risks and must be done cautiously, if at all.  Not only may there be a question as to whether another person's story is integral to your own -- an essential aspect of the courts' reasoning in Anonsen and Kaysen.  But there is always the risk that the "dislosee" will contend that the disclosures about him/her are not only intimate, but false, as in this spicy yet disturbing case involving the blogger Washingtonienne.

If you are publishing a tell-all memoir with a major publishing house or a tell-all article with a major magazine, chances are that somewhere along the line you will get advice from an in-house lawyer about how to reduce the legal risks.  You can change names, change locations, change all sorts of identifying details, while keeping the core truth of your story intact. All of these precautions help to make the disclosee less identifiable.  But all of these precautions cannot provide an absolute guarantee that a disclosee will not be able to argue successfully that he or she is inevitably identifiable by some people who new the author and her relationship to the disclosee.

The greatest risks are likely incurred by bloggers, Facebook posters, and other online self-publishers who nonchalantly publish the intimate details of their personal lives and those of their lovers and friends, without the benefit of any legal advice.  Perhaps like Washingtonienne they take at least some precautions to conceal the identities of those they portray.  But perhaps, like Washingtonienne's embarrassed lover, their lovers and friends will feel that not enough has been done to safeguard their secrets and protect their privacy.  And it may be far more difficult for a private blogger (in contrast to a well-known author, like Kaysen, published by a powerful publisher, like Random House) to persuade a court that the private facts disclosed are matters of genuine public concern.  If the court believes they are not, then the blogger's last, best hope is that the court may conclude, as in Anonsen and Kaysen, that an autobiographer has "a right to disclose her own intimate affairs."  It's an appealing legal principle, a potentially important principle, but not one you should count on.

Postscript:  this post is not, by any means, intended to discourage memoirists from practicing their craft.  Remember, to be actionable, the disclosure must be of private facts that would be highly offensive to a reasonable person.  Most memoirs don't venture into that territory.  Moreover, book editors often tell their authors to write the truth and let the in-house lawyers figure out how the truth -- or at least most of it -- can be safely published.

Friday, January 7, 2011

Can I Say My Thesis Was Not Previously Published?

Kate Sutherland, in a tweet today @LawandLit, brought my attention to this article about how the mandatory digital deposit of theses and dissertations could threaten the prospects of creative writing students to find commercial print publishers for their novels and short story collections.  It is a subspecies on the problem discussed in one of my earlier posts:  "Can I Say My Story Was Not Previously Published"?  Oronte Churm quotes the director of the University of Michigan's MFA in writing program as saying:
If all publishing ends up online, [and] there's only one medium, then archiving anything online means that it’s been published. A student who put a story in his thesis could not then sell it to an online magazine because what would be the point?

Who "Owns" an Interview?

Writers and reporters conduct countless thousands of interviews every day. You might therefore think that it would be well-settled who owns the copyright in the transcriptions or recordings of those interviews, but there is a surprising disparity of opinion on the issue.

It is clear that most interviews are copyright-protected.  As described in this earlier post, an expressive work is subject to copyright protection the moment that it is "fixed in any tangible medium of expression." An interview is "fixed" the instant it is, for example, tape recorded, videotaped, or set down by the interviewer in nearly verbatim notes. (There is the additional requirement that the fixation must be with the "authority" of the author, so a conversation surreptitiously recorded by one participant may not give rise to a copyrighted fixation.)

But who is the copyright owner of the resulting give and take of questions and answers? The interviewer who formulates the questions? (That's basically where the Taggart v. WMAQ case came out, as summarized by the Henderson & Sturm law firm here.) The interviewee who provides the answers, which typically form the core of what readers are really looking to read in interviews? (That seems to be what Suid v. Newsweek implies.)  Or do the interviewee and interviewer create a kind of compilation in which each has an ownership interest in his or her separate contribution? (That appears to be the position taken in Quinto v. Legal Times and in Section 317 of the Compendium II of the Copyright Office Practices.)  Or is the interview a "joint work" where the interviewer and interviewee both have a copyright interest in both the questions and the answers. (That's the default assumption of leading copyright scholars William Patry and Paul Goldstein.)  And, when a work is recorded, does some third party, such as a videographer own the recording? (Very often, yes; see Taggart again.)  Finally, when the interview is conducted as part of the interviewer's or interviewee's employment, the employer(S) may own some or all of the interview as a work for hire.

All of this is seldom of any great practical consequence to writers. In the absence of some agreement to the contrary, if the interviewee knew he was being interviewed, a court would virtually always conclude that, at the very least, the interviewee had implicitly granted the interviewer a non-exclusive license to publish the resulting interview. If someone were to copy the interview, without permission, beyond the amount permitted by fair use, the interviewer and/or the interviewee would have a claim against the copier for infringement. (But see Suid.) And, if you are looking to obtain permission to quote from an interview (again, if you need to use more than fair use allows), then it usually makes sense to contact the interviewer, his or her publisher, or the media entity that employed the interviewer. I do not know of any instances where a interviewee has filed suit contending that the interviewer did not have authority to grant permission to quote from a published interview. (If any reader knows of such a case, please let me know.)

When a problem arises, it is generally not because of a dispute between interviewer and interviewee over copyright ownership, but because the interviewee purports to have placed some express restrictions on how the interview may be used. For example, in Taggart, the defendant television station videotaped a prison interview with a convicted sex offender on the subject of lax regulation at summer camps. The interviewee/plaintiff then claimed that he had requested that the tape not be used in any way in a broadcast.  Fortunately for WMAQ, the court held that the interviewee had no copyright interest in his words, so there was no need to determine whether such a promise was made.

But interviewers should be aware that, if they make explicit promises to interviewees (e.g., with respect to how they will be portrayed or how the interviews will be used), the interviewers -- and/or their employers -- may be held liable for breach of contract (or on a related legal theory, known as promissory estoppel) if those promises are not kept.  That is one of the lessons of Cohen v. Cowles Media, in which a newspaper was ultimately held liable for failure to live up to a promise not to disclose the identity of a confidential news source.

So, writers, you almost certainly own some kind of copyright interest in the interviews you conduct -- unless it is a work for hire for an employer or contracting party.  But ownership of the copyright is not the end of the story in terms of your control over how the interview is used.

In terms of best practices: it's wise, when taping your interviews, to get a statement from your interviewee on the tape that the interviewee is okay with your taping his or her words.  If you and the interviewee have some special understanding with regard to copyright ownership (or other matters relating to the interview), it's best to memorialize that understanding beforehand on tape or in writing (if only in an exchange of emails).  If you have promised something to your interviewee (e.g., the opportunity to review quotations before publication, or that something the interviewee said will be "off the record"), make sure you abide by the promise.

In later posts, I will return to three special problems related to interviews:  the risks of inaccurate quotation; best practices for going on and off the record; and the risks of interviewing someone who has signed a confidentiality agreement, aka the Jeffrey Wigand problem.

Postscript:  Bob Tarantino of the Heenan Blaikie firm in Toronto has written a good piece on this issue under Canadian law and reaches a somewhat different (or, at least, more definite) conclusion than the U.S. cases provide.

Saturday, January 1, 2011

Works Going Into the Public Domain (in Some Countries) in 2011

The first tweet of the New Year from the always-interesting Boho Lawyer drew my attention to the fact that January 1 was Public Domain Day.  Alas, President Obama is not issuing a proclamation to celebrate the occasion.  Public Domain Day is the the brainchild of Duke University's Center for the Study of the Public Domain.  There is a lot of interesting material of their site, including a list of prominent authors, some of whose important works are entering the public domain today in some jurisdictions.  The caveats are fascinating to read, illustrating, in the words of the Center, "how fiendishly complex copyright laws can be."

Key point: thanks the the Sonny Bono Copyright Term Extension Act, no works will be newly entering the public domain in the United States until 2019.