Nothing's hotter than celebrity memoirs and unauthorized biographies. Some writers see it as their meal ticket but are celebrities fair game for those seeking an easy ticket to success? We asked publishing attorney veteran Lloyd Jassin about this and more and here is what he had to say:
Q: I'm writing a new book with a collection of celebrity stories of triumph. They are based on my interviews with them. Do I have to have their permission to have them in my book? If they write the stories themselves, do they have to sign a release form? If so, what should be in it?
Under the permission clause of your publishing agreement, you are responsible for obtaining permission to use material that belongs to others. The Copyright Act vests initial ownership in the author of the work. So, when Lindsay Lohan gets her life together, if you ask her to write her own story of celebrity of celebrity triumph for your book, you will need a signed contributor agreement. The scope of rights you obtain should match the scope of the rights you've granted your publisher, which will include book and electronic book rights, and certain secondary rights, including translation and serial rights. It's a pretty long list. Likely, your publisher can provide you with a form contributor agreement that's acceptable to them. However, no prudent book publisher will publish her contribution without one.
If the book is based on interviews you have done, there are several excellent defenses to the occasional celebrity lawsuit, including newsworthiness (to claims of invasion of publicity), Free Speech, fair use (to claims of copyright infringement), and, of course, implied consent. The best defense is written consent, but, that's not always feasible - especially, in the context of celebrity interviews.
One advantage of interviewing a celebrity is that the First Amendment more often than not, immunizes interviewers from claims of invasion of the right of privacy, publicity and libel. Of course, make sure you transcribe accurately. In most states, truth is an absolute defense to libel. Be aware that if the celebrity places limits on how, where or for what purpose the interview can be used for, the law may hold you to that promise. If you exceed the scope of consent, you lose the consent. Make sure you know where you stashed the interview. If two weeks after taping you lose the interview, you may still have valid defenses, but, you lose that Perry Mason moment when you dramatically hit the play button before a packed courtroom of celebrity gawkers.
So far, I've focused mainly on the right of privacy, publicity, libel and contract issues. The parade of legal horribles would not be complete without a copyright infringement claim. While a copyright claim is more likely to appear on a law school exam about celebrity interviews, than one nailed to your door, the Copyright Office believes that an interview consists of two separate copyrights. That's right; they believe it consists of two separate copyrights. They don't actually know. Knowing is left to the courts. At least one court believes that a recorded interview is a jointly copyrighted work.
While the best defense is written consent, audio or video releases are pretty good substitutes. My advice is ask for permission to record the celeb's answers to your questions. When you turn your recorder on, introduce yourself by name. Make sure you state the date of the interview, as well as the subject's name. The celebrity's consent should be audible. If there's a working title for your book, say what it is. Be conversational, but let the celebrity know that books are no longer just books. You or your publisher might publish the interview in print or in other forms, including enhanced ebooks and other digital media. The interview might even run on your blog or in newspapers.
Lloyd Jassin is a publishing and intellectual property attorney and a former book publishing executive.
THE INFORMATION PROVIDED ABOVE IS OF A GENERAL NATURE AND IS NOT INTENDED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC LEGAL ISSUE OR QUESTION, SEEK THE SERVICES OF A COMPETENT ATTORNEY.