Friday, December 28, 2012
Can Husband Use Interview He Did With Time Magazine?
- 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).
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.