OHPC_Atty Verbal InterviewsTO: Adam Flaherty, Otsego City Administrator
FROM: David Kendall and Leah Koch, City Attorney's Office
DATE: January 28, 2020
RE: Otsego Historic Preservation Commission
We research the copyright and data practices implications surrounding verbal interviews for the
Otsego Historic Preservation Commission,
Copyright
Under copyright law, the author of a tangible creation that is copyrightable obtains ownership.
Because interviews have at least two people collaborating to create an interview there is no clear
answer as to who is the author/owner. There is no clear law of who owns the rights to an
interview, a release agreement is the best way to settle the issue far in advance of any dispute.
Hypothetically, if Otsego does not use a release agreement and later the interviews are used for
commercial gain, then an interviewee or estate of an interviewee could dispute ownership for the
salve of profit. In this case, a release or agreement would give Otsego certainty in using the
interviews.
The form that Otsego currently utilizes may be sufficient to defend against a copyright dispute if
it is used with the Best Practice list below. However, there are two main recommended changes.
The first is giving the copyright to the City, not the Commission. The Commission is a subset of
the City and therefore the interviews will still be used for their intended purpose and the City
would have greater freedom in using the materials in alternative ways. Additionally, if the
Commission were to dissolve, then the City would not lose confidence in using the copyright.
The second change is that a new agreement should include a release from future claims, such as
invasion of privacy or defamation. Proposed new agreements are at the end of this memo.
Best Practice
In addition to implementing the new forms, here are a few ways to insure that there is a copyright
to the interview and that Otsego owns that copyright without limits on future use:
• Have the interviewer sign the release before the interview.
• Have the interviewee sign the release before the interview.
• Do not make promises to the interviewee or the interviewer as to how the interview will or
will not be used in the future.
• Record the interview with audio or video.
• Have the interviewee say, while being recorded, that they understand they are being recorded
and they consent to being recorded.
Data Practices
These recorded interviews are public data on individuals because the interviewees are sharing
their information. The interviews are not classified as non-public or confidential by any law or
temporary classification and the presumption is that the data is public. Beyond that, these
interviews are intended to be used publically to foster civic pride regarding historical
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accomplishments. Therefore, these recorded interviews are public data on individuals. The City
must establish or modify current written procedures to facilitate public access of these
interviews.
If information collected relates to deceased individuals or non -individuals (i.e. corporations,
nonprofit organizations) this too would be public data for the same reasons stated above.
Copyright and Data Practices Act
After the interviews have been created, Otsego may not rely on the copyright to deny citizens
from inspecting or copying public data. Nor can Otsego use a copyright as a reason to charge fees
above and beyond what is allowed in the Data Practices Act. The City can place restrictions on
subsequent use of the data including distribution.
Example: a citizen requested to make copies of maps from the DNR, the DNR allowed the copies
to be made but limited any use solely to personal use of the citizen. This was an appropriate use
of the DNR's copyright while remaining in compliance with the Data Practices Act.
The copyright is subject to fair use of the work just as any other copyright is. Meaning that news
reporting, criticism, parody, teaching, scholarship, and research on the data cannot be restricted.
Right of Publicity
Minnesota does have a common law "right of publicity." Meaning, outside of copyright an
individual has a right to their likeness and reputation. Carson v. Nat'l Bank of Commerce Tr. &
Say., 501 F.2d 1082, 1084 (8th Cir. 1974)
In Minnesota, this right applies when one party uses another party's "name or likeness for his
own purposes and benefit, even though the use is not a commercial one, and even though the
benefit sought to be obtained is not a pecuniary one." Gregerson v. Vilana Fin., Inc., Civ. No.
06-1164, 2007 U.S. Dist. LEXIS 64960, at *23-24 (D. Minn. Aug. 31, 2007) (Montgomery, J.)
The solution to such a right to publicity is to have the individual permit the use of the interview
for all advertising, promotion, or any other form.
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Interview Agreement
Grant
I consent to the recording of my statements and grant to the City of Otsego ("City") and its
agents, assigns, licensees, and successors the right to copy, reproduce, and use all or a portion of
the interview for any purpose. I understand and acknowledge that the City of Otsego will be the
sole owner of all copyright and other rights in the interview.
I permit the use of all or a portion of the interview in all forms and media including advertising
and related promotion without geographical limits and in perpetuity. I grant the right to use my
image and name in connection with all uses of the interview and waive the right to inspect or
approve use of my interview.
Release
I release the City and the City's agents, assigns, licensees, and successors from any claims that
may arise regarding the use of the interview including any claims of defamation, invasion of
privacy, or infringement of moral rights, rights of publicity, or copyright. I acknowledge that I
have no ownership rights in the interview.
Agreed and confirmed:
Date:
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Signature:
Name:
Interview Agreement
I have agreed to be interviewed by the City of Otsego and the Historical Preservation
Commission. I intend to provide my personal experiences, remarks, and recollections as well as
any photographs and documents that I may choose to give to the City of Otsego.
I hereby grant and assign to the City of Otsego and its agents the following rights in connection
with the interview and any interview materials I provide for use in any advertising, packaging, or
promotional materials, in any and all editions, versions, and media, in perpetuity and without any
geographical limits.
I . The right to quote or paraphrase all or any portion of the interview, and to generally use
and publish any interview materials, including my experiences, recollections, incidents,
remarks, dialogue, actions, and information, as well as any photographs and documents
that I may give to the City of Otsego.
2. The right to use my name, image, and biographical data.
3. The right to develop, produce, distribute, advertise, promote, or otherwise use the
interview in any manner that the City of Otsego or its agents deem appropriate. I
understand and acknowledge that the City of Otsego will be the sole owner of all
copyright and other rights in the interview.
In order to enable the City of Otsego to develop the interview in any manner that the City may
deem best, I hereby release and discharge the City of Otsego and its agents, assigns, licensees,
and successors from any and all claims, demands, or causes of action that I may have against
them by reason of anything contained in the interview, or any of the above uses, including any
claims based on the right of privacy, the right of publicity, copyright, libel, defamation, or any
other right.
I acknowledge and agree that I am not entitled to receive any other form of payment from the
City of Otsego and/or its agents, assigns, licensees, and successors.
Agreed and confirmed:
Date: Signature:
Name:
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