By Alison Davis, Legal Officer, Arts Law Centre of Australia.
First published in ART+law September 2000.
Arts Law is often contacted by people who want to conduct an interview, or are themselves going to be interviewed, with questions about their rights to the interview material. Who owns it? Are there limitations on how it can be edited? Where can it be used?
Whether the interview is for use in a documentary film, bio-pic film, biography or oral history record, Arts Law recommends that the interviewer obtains a release from the interviewee. The purpose of a release is to ensure that both parties are clear about their rights and obligations in relation to the interview. At a minimum the release should confirm what the interviewer can do with the material, the interviewee?s rights in relation to the editing of the material and how the interviewee will be credited.
Issues for interviewees
Before you agree to be interviewed, you should discuss with the interviewer what he/she intends to use the interview for. You should consider what limitations, if any, you want to place on the interviewer?s ability to use the material. If, for example, the purpose of the interview is for inclusion in an historical textbook, you may not wish to see it included as part of an exhibition at the local library or posted on a website without your further consent. You may want the opportunity to review and approve the use of the interview in the work before it is released or published.
If you intend disclosing confidential information, you should make it clear prior to the interview that the information is confidential and cannot be used or disclosed without your permission. Any unauthorised use of the interview will entitle you to bring an action for breach of confidence. For further information see Arts Law's information sheet Protecting Your Ideas - the Law of Confidential Information.
Issues for interviewers
If you are producing a work, whether it be a documentary or a book, you want to be sure that you are able to use all material you obtain from interviews for the purposes for which you require it. Consider both the primary purpose of the interview, such as inclusion in a documentary, and any ancillary uses you anticipate, such as using excerpts of the interview in promotional material or on a related website. Do not assume that you have unlimited rights to use the interview. Obtain a written release from the interviewee granting you rights to do all the things you want to be able to do with the interview.
Be aware that book publishers or film distributors are likely to require a warranty from you as the author or producer that you have all the necessary releases required to exploit (or use) the work. If your work includes material obtained from interviews, then the warranty will extend to interviewees' releases.
Payment for use of interview
Whether the interviewee is to be paid for their time, effort and contribution, is a matter for negotiation between the parties. If the interviewee is providing substantial source material for a work, it may be reasonable to provide some compensation to the interviewee for their input. Again, the issue of payment should be discussed and agreed upon before the interview.
Defamation
The interviewee's release should include a warranty (a promise) that, to the interviewee's knowledge, the interview is not defamatory and an indemnity (a guarantee) in respect of any breach of this warranty.
The interviewer should also be aware that any use of the interview that is defamatory of the interviewee may entitle the interviewee to bring an action in defamation. For example, it could be defamatory to use an interview in a way that is not authorised by the interviewee and wrongly implies the interviewee has given their consent, or alternatively, in a way that juxtaposes the interview with other material in such a way as to impute false or defamatory attributes to the interviewee. For more information see the Arts Law Defamation information sheet.
Use of Indigenous cultural material
Special care should be taken when conducting an interview that involves traditional or ritual knowledge. You should establish whether the interviewee has the authority to grant permission to use the interview material. You may need to seek permission from community elders to conduct and use the interview. Give the traditional custodians of the material the opportunity to review and approve each and every use made of it.
What happens when no release is obtained?
Where material is obtained by way of an interview and no release is signed, there may be an implied agreement that the interview can be used for the purpose for which it was provided. If you agree to be interviewed for a documentary on line-dancing, then the interviewer can presume to be authorised to use the interview for that purpose. But, if the interviewer wants to use it in a book on Australian dance culture, they will probably need to get your approval for that.
A sample Interviewee's Release can be purchased from Arts Law by downloading the publication order form here.
