Friday, January 7, 2011

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.

24 comments:

  1. Another excellent post, Mark. I hope to tweet about it soon. A related issue that comes up a lot now that many interviews are done by e-mail:

    Let's say that, as an author, I do an e-mail interview with publication No. 1. Then I'm asked some of the same questions in e-mail interviews with publications No. 2, 3, 4 and 5. Can I cut and paste some of my answers from interview No. 1 into the later interviews? (I haven't done this because, as a practical matter, the media prefer exclusives and, in my view, would dislike it, but I've seen other writers do it and wonder about the legality of that.) Similarly, if I do an e-mail interview with publication No. 1, who must give permission for it to be reprinted?

    Issues like these have the potential to affect nearly all authors , because reporters tend to ask the same questions over and over. ("How did you get the idea for your book?"). Any thoughts? Thanks again for such a helpful blog.
    Jan

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    Replies
    1. I have a query. My sister in law who doesn't talk English just interviwed by KIRO,they asked her a number of questions she said she doen't speak English.

      free literature review

      Delete
  2. Two good questions. Question 1: I tend to think that this would be more of an ethical issue for the author than a legal one, unless the author has expressly agreed that the interviewer will be the exclusive owner of all rights in the interview. Absent such an agreement, three of the four arguable legal theories would give the author/interviewee at least some ownership interest in her own answers, which would make it tough for an interviewer to make out a compelling case against the interviewee. (Plus, in a pinch, the author/interviewee could also try to argue fair use.) Question 2: As a practical matter, people clearing permissions typically ask the interviewer or her employer for permission; if the interviewer knows she doesn't own the rights, one hopes she would say so. In my original post, I asked the question whether any reader knows of an instance where the assent of the interviewer or his/her employers was deemed insufficient. (I don't know of such a case off the top of my head.) It's interesting to speculate whether one could seek permission from the interviewee instead. Again, in theory, it depends on which legal theory of interview ownership is correct. In practice, the key is to get permission from someone you reasonably believe has the right to grant such permission. Ideally, the grantor will confirm in a written permission form that he has the power to make the grant. But, again, permissions aren't always handled with a highest degree of formality.

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  3. I have a question. My brother in law who doesn't speak English just interviwed by KIRO,they asked him some questions he said he doen't speak English. They said that he lied that he doesn't speak English. They also published some false information about him with out not knowing the facts. It really hurted my family and him when we found out. What can i do??

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  4. Lyuba, I couldn't figure out a way to contact you directly. Legal ethics rules don't permit me to give personalized legal advice in a blog. If your brother-in-law has a legal question, he should contact a lawyer in the town in which he lives. Sorry I can't be more helpful.

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  5. Hello! Thank you for the nice post.
    Here is the situation:
    Let's assume a reporter has taped an interview. The interviewee then asks to see the final material before it is published.
    Is a reporter required to provide the video for the interviewee's approval prior to publishing?

    Your insight would be much appreciated!

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  6. I'm wondering about reprinting interviews. If the interviewer wants to republish the interview in a new venue not originally agreed upon, does it require the express permission of the interviewee?

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  7. What if you interview people for a work for hire that you then use to ghost write chapters for a multi-subject book? Here's the twist. There was no paper contract stating it was a work for hire. A lump sum was paid for the work, however. Can portions of that material be used in a different format--say a Q&A for a blog?

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  8. What is the legal issue surrounding the death of the interviewee? Does the interview, thus, revert in ownership to the interviewer? Or is this an issue of inheritance by interviewee's heirs? Who, in fact, legally owns the issue and can publish?

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  9. so if I do a video interview and post it to youtube, or transcribe an interview to text and post it to a blog or something, do I have rights to put ads (from google adsense) on the page and make revenue?

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  10. Very helpful and informative. I am also curious about ownership if the interviewee has died (and presumably not signed a release) as per the Anonymous comment on November 6th, 2011.

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  11. There are many video interviews of me interviewing people on youtube that were filmed for a public access tv show, do i own my voice and my image in the videos, i was neither paid nor do i give permission to the channel to use me them?

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  12. This is a wonderful blog - thank-you.

    What happens if an interviewer conducts and transcribes an interview, allows the interviewee to make edits and changes, and the interviewee subsequently has the interview published themselves? Is this considered legitimate - i.e. does the interviewee co-own copyright?

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  13. Thanks for you posts, Anonymouses, Mr. Stephensen, Lyuba, B.T., and Ms. Balfour. Alas, as mentioned above, legal ethics rules do not permit me to answer individualized legal questions on this blog. You might see if there is a volunteer lawyers for the arts organization in your state that can. Check this earlier post: http://www.rightsofwriters.com/2010/12/44-places-where-writers-and-other.html

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  14. Hello mark. I am a freelance journalist for a popular magazine. I do not get paid by the magazine nor did I sign any work for hire contract. If I were to take all of the audio recordings that I never published to the mgzine, but created my own self published book using the unpublished interviews, would I be clear? The audio I never mention the magazine I work for...

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  15. I have a question. I want to write and publish a book. In this book I want to quote from an interview which I watched on youtube. The interview has been broadcasted by a big American Network Company.

    Can I just grap content from the show? Or should I ask permission first from the Broadcasting company? Or should I ask the interviewee? Mind you, it is from a rather old show. It is from the early 90's...

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  16. Dear Mark, I have the feeling I was a little too blunt in my previous post. I'm sorry for that, I'm not a native speaker of English and I was just a bit too enthousiast in asking, since I really like to know the answer. I hope you can find the time to respond to my sincere query.

    regards,
    Vincent

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  17. Great post! I have a quick question: As the interviewer, do I have the right to sell to the public an audio interview with a celebrity without contacting the celebrity? I have suitcases full of audio tapes with celebrities. . . .

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  18. Great Blog! Thank you! I had a question: In an anthology for which individual contributors have given permission to use their material, can they, after publication, distribution and sales, ask that their material be withdrawn from the anthology?

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  19. Anonymous:

    Very useful information. I have a question: After the interview has been published and the interviewee was happy about it. Now the interview will be published in a book and the interviewee oppose it. As the interviewer, do I have the right to publish it anyway?

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  20. Hi Mark,
    So If I, as a film maker, want to use parts of answers of a televised interview in a screenplay (i.e. not to use video footage, but similar sentences used in answers of a televised interview in my script) are there copyright issues there?

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  21. I conducted a number of interviews for a radio program
    I wanted to used the interviews for a book. Since I owned the program and conducted the interview I felt I had clear ground for publishing them in a written form.
    I have now received a cease and desist from my guest publisher, They claim they hold all rights to publish all work from this author.

    Where do I stand?
    Sonnie

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  22. Great topic and thank you for posting. As a career journalist and broadcaster for media outlets it was easier not to have to worry about where the content of interviews would end up. As an independent practitioner of freelance writing and video production it is a brave new world.

    Specifically I'd like to give talent a reasonable release that is comprehensive for the specific purpose in which they are engaged. If i want to use the content or their image in something else I'm willing to talk to them and gain separate permission. That opens a can of worms, but in my mind allows the subject matter experts to work with me with confidence for repeat projects.

    Any thoughts?

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  23. So if I did a series of email interviews of bloggers, already published as a pdf on my blog, and I wanted to rework it into a book made available on Amazon, is that within my rights to do?

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