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 the author's 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. For more information on this issue, read The Gap Trap.
These are some of the issues faced in the release:
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 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.
There also should be included 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 the foreign language rights to the book, this does not imply any grant to a foreign language electronic data base 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.
Overall, the release must deal with issues
about which party, interviewer or interviewee, actually owns the rights
to the “interview.” This can be complex and the answer is not intuitively
self-evident. There are issues of copyright rights, rights of “joint
authors” and other issues, all of which must be addressed in the release.
© 1996 Ivan Hoffman
This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.
No portion of this article may be copied, retransmitted,
reposted, duplicated or otherwise used without the express written approval
of the author.