Wednesday, March 31, 2010

Ivy League Interview Rights Snafu

Dear Rich: I granted an interview to a student at the Harvard Crimson, who asked to record the interview on his pocket vocorder. I agreed to the recording and afterwards asked him for a copy. He sent me the digital file. Having listened to the recording, I thought the quality was good enough to post the mp3 on one of my websites, because I happened to be co-authoring a paper on a similar topic to the discussion and wanted my co-author (now back in Tokyo) to listen to it. Later I received an email from the reporter saying that the president of the newspaper did not permit me to post the recording on my website. It's a bit strange, really, because I am owner of the content, as is the reporter, but I don't know where the newspaper gets involved. I have no intention of publicizing the recording, but since it does capture some interesting thoughts of my own, I wanted to simply put it on a public website where anyone interested might happen along and find it. The question is: does a thirdy party have such a right to disallow me to make the recording public? I thought only the people on the recording had that privilege. The Dear Rich Staff hopes you keep the interview posted although nobody can say for sure how your dispute will play out. We visited this subject once before, and at that time we cited this article showing how courts can look at your situation in three ways: (1) the interviewer owns the copyright in the interview because he "fixed" the work and you "consented" by being interviewed; (2) you each own copyright in your separate contributions; and (3) you are joint authors and can each do what you want with the interview (and you compensate each other if the interview is used to earn money). 
What's best for you? We think the third view is the most realistic and enlightened. Of course, this also depends on any agreements you may have made or releases that you signed. We think the Crimson should either re-think its position or begin using releases if they wish to prevent their subject from reproducing the contents of an interview. Would you improve your position by transcribing the interview and only reproducing your responses? Perhaps, but you can certainly make a good fair use argument for including the questions.
What about the DMCA? The Crimson may also bypass all this and seek to use the DMCA to remove the recording from your site. We think that would be a mistake and not just if they fail to consider the fair use ramifications. It certainly would not fit with the spirit of transparency and freedom of information that the newspaper seems to support. (Like, what would Larry say about all this?)