Using Quotes Left in Your Notes: 7 Considerations

There was a recent discussion on a writers' board about using quotes from an interview you did when they didn't make the original piece you were writing. Can you do that? There's no simple answer, and the considerations are as much business relations as they are contractual.

• You must check the contract from the first publication. Some writers assume that they can do what they want with their notes. However, I've seen a few publishers insert wording in a WMFH contract defining the work in question as including all drafts and notes. In that phrasing, you may have no rights to the material.


• If you do own the notes, then there's a question of whether they are quotes or not. If quotes, then the person who said them actually owns the copyright on that part of the material, not you, even though you took them down. Fair use would allow some use in a journalistic or educational context, but you couldn't necessarily present verbatim everything in there, because then you'd be crossing the fair use bound of what percentage you could quote. (And there is no fixed number to use as a guide.)


• You also wouldn't have rights to do anything at all you wanted to with the quotes: for example, using them in a piece of marketing.


• The subject also has some rights in how his or her name is being portrayed. If you misused quotes in a way that painted the person in a bad light (taking quotes out of context, for example), the person could potentially sue you and win.


• Although the courts are mixed on the issue, it's not clear whether someone could say that you only had permission to use the material for the publication you said it was for, and not for another one. What if you wrote another piece and placed it in some magazine espousing views that the subject found repugnant? Could you be sued for making it seem that the person was supporting those views? Possibly. And once you have to defend yourself, you lose, even if ultimately you win, because of all the costs you incur.


• Aside from the legal issues are the practical ones. If you want to speak with someone again, being respectful is smart. That means letting them know what you're doing (unless you say up front that it could appear in other places). You could just state that you would be using the material elsewhere, but that could tick the person off. What if the person says, "I don't want to appear in that publication," or "You misrepresented my views in the first piece and so I don't want you using the material anywhere else?" Can you ignore them? You would at least burn a bridge. There are times you might feel that you had to, but you should make a knowing choice.


• If a PR person was involved in getting the interview and you burn the client, you've also burned the PR source. Again, I'm not suggesting that you tiptoe about to smooth the sensibilities of publicity representatives, but realize what you're doing when you do it.

Some of the solutions include getting a written release from the subject or even taping the subject's provision of assent to your use of the material. I try to remember to tell people up front that I could end up using an interview in some other publication as well, if the topic were similar and/or relevant.