Release Me: Interview Consents and Multiple Uses

Dear Rich: If a reporter has consent to interview someone, can that reporter also play that recording during an interview on air?  

The reporter can probably play the interview on air, but the answer depends on several factors.

Consent: Oral, implied, or written. A consent to interview (also known as a 'release') is a promise by the interview subject not to sue over various legal claims -- for example, invasion of privacy, defamation, copyright infringement, and emotional distress. Consent can be oral, for example, if the interview subject agrees to the recording on the phone; it can be implied when the interview subject is aware the reporter is tape-recording and proceeds with the interview, or it can be in writing, in which case, the document may establish whether the interviewer can audio broadcast the interview. FYI, in some states, such as California consent is required to tape record a conversation/interview -- that is, the interview can't be recorded unless both parties consent. Federal law only requires that one party consent

Limited or Unlimited. Broadcasting the tape recording may depend on whether the interview subject grants a limited or unlimited release. The latter provides broad rights, while the former specifies which rights the interviewer acquires. If a use exceeds what’s permitted under the limited release, the interview subject can sue for breach of the agreement. For example, if your consent to use the interview material is only in conjunction with a specific online publication, you cannot later use it as the basis of a podcast. (A limited and unlimited model release are provided at our craftslaw website.) 

What about "off the record" comments? It is common for an interview subject to ask to read or edit the interview or to have some comments removed or kept “off the record.” Any agreement that is made with the interview subject (including an agreement for anonymity) should be documented. Failure to honor the arrangement may give rise to a lawsuit for monetary damages. 

Sample consent/release. Here is a link to an interview release provided by Yale University. You'll see that this is an unlimited release granting broad rights ("to publish, reproduce, distribute, transmit, broadcast, exhibit, digitize, display, translate, modify ... ") and it also includes an assignment of copyright. That's because the interview subject may retain copyright as to their response.