Can Husband Use Interview He Did With Time Magazine?

Dear Rich: My husband did an over-the-phone interview with Time Magazine years ago and wants to use the resulting article in a book he is writing. He didn’t sign any sort of release form for the 172-word article, which also included a photo taken by our local newspaper. Although the article is cited in MasterFILE Premier and Business Source Premier online databases as a whole article, Time claims it is part of a larger article that must be reprinted at a cost of $1,500 to $3,500 for permission. They state that “all Time Magazine articles must be reprinted in their entirety as originally appeared in the magazine along with the logo, credits and bylines.” They decline to explain this statement or to provide content until a contract is signed so it is unclear what they define as the whole article. It is also unclear to us whether they are suggesting printing an image of the article including pictures or just the text, which is what we requested. This whole interaction seems suspicious. Can my husband claim any ownership to the interview? Is it usual for a magazine to require one to reprint content one has no use for or is something strange happening here? We think your husband has a reasonable fair use argument for reproducing the Time article text in his book -- particularly if he is commenting on the article -- but we think you should first consider these issues:

• Indemnity. If your husband deals with a book publisher, the publishing agreement will likely require you to pay the publisher's legal fees for any disputes caused by the book. Even if you succeed with a fair use dispute, you'll end up footing your legal bills and the publisher's, too.
• Vetting the book. Also, a publisher may require that you provide proof of permission for all non-original material. Chances are that the publisher will not want to take a chance on your fair use arguments (even if you cite the Dear Rich Staff as your source).
• Publish it yourself. If you're not dealing with a publisher, your biggest concern is whether someone from Time Magazine's licensing department will find out about your use. If so, you may likely get chased, perhaps all the way to the courthouse. If Time doesn't see it (or chooses to ignore it), you can pass Go and collect $200 (metaphorically speaking).

Who owns the interview? As we've discussed before, interviews are one of the gray areas of copyright law. One legal theory holds that an interview consists of two separate works: one work created by the interviewer's questions, and the other created by the subject's responses. These works may be protected under traditional copyright principles (or they may be protected under what's referred to as common law copyright -- for example, some state laws currently provide common law rights to spoken statements). Under the 'two-separate works' approach, you could reproduce your husband's words, but not the rest of the material in the article.
Alternatively, some legal scholars argue that a better approach is that the interviewer and subject jointly create one work. Under that analysis, the interviewer and the subject are joint authors. In that case, either party can use the interview for any purpose provided that the party using the interview accounts to the other for any profits. We're not sure that applies to your situation, because it sounds as if the article goes beyond the Q-and-A format. (Anyway, you can read more on these two interview approaches at the Publaw.com site.) (Note that one court -- dealing with an interview with Ernest Hemingway -- hinted that Hemingway's failure to limit usage at the time of the interview implied unlimited use by the interviewer!)
Bottom line dept.  We think this is one of those risk analysis situations. If you have a strong desire to use the article and are self-publishing to a limited audience, consider taking the risk. If you're planning on a bigger launch and a broader audience, you may want to limit reproduction to your interview responses and short snippets from the article for a stronger fair use argument. As for any photos, you would contact the local newspaper and find out whether they sold all rights in your husband's image to Time, or whether they can license the photo use to you for your book.