A published interview needs two separate agreements: consent to record the conversation, and written permission to publish what comes out of it. Federal law needs one party's consent to record (18 U.S.C. 2511(2)(d)), some states need everyone's, and neither kind of consent covers publishing. This page covers United States law as general information, not legal advice.
What the finished piece is for
Invented for the example: a business broker plans a half-hour interview with Sam, who sold a commercial cleaning company, and writes one sentence before any question. "After listening, an owner who plans to sell within two years will know which records a buyer asks for first." The sentence names one reader and what that reader can do afterward. The broker checks each question against it before the call, and each cut against it after.
Under it, the plan has three short lists.
- The reader. Owners about two years from a sale, and nobody else. Buyers and other brokers would each need a different set of questions.
- What Sam receives. A copy of the recording, a transcript, a draft of each public piece before it goes out, links once the pieces are live and the credit line word for word, each with a date.
- What stays out. Names of buyers or sellers in a live deal, prices and terms, anything under a confidentiality agreement and anything Sam asks to keep off the record. The broker reads this list to Sam at the start of the recording.
Questions that ask for one example at a time
A question such as "What advice do you have for sellers?" leaves the guest to choose the subject. "Tell me about a time a buyer asked for a record the owner did not have, and what happened next" names the case and asks for its ending.
The broker writes ten questions in five stages and expects to reach six or seven of them in the half hour.
| Stage | What it is for | Example question |
|---|---|---|
| Opening | Lets the guest settle in and gives the audience context | "What do you do, and who do you do it for?" |
| Story | One specific case with a beginning and an end | "Tell me about the last sale where the records slowed things down." |
| Specifics | The steps and figures the guest is willing to make public | "What did the owner have to pull together, and how long did it take?" |
| Lesson | What someone in the same spot might do | "If an owner two years from selling called you today, what would they start on?" |
| Close | Anything missed, and a next step for the audience | "What should I have asked that I did not?" |
Every question on the list asks for one story or one figure. After Sam answers, the broker lets a few seconds pass before the next question, in case Sam has more to say.
Consent to record is its own question
Under federal law a recording is lawful when one party to the conversation consents, and that party can be the person recording, unless the recording is made to commit a crime or a tort (18 U.S.C. 2511(2)(d)). Some states set a stricter rule. The Reporters Committee for Freedom of the Press lists California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington as requiring the consent of everyone in the conversation, and Michigan at least for recordings made by someone outside it. The same guide names states that apply the stricter rule only to phone calls, only to conversations in person, or only in particularly private places.
Clients of the brokerage Salomon Smith Barney who lived in California sued over calls with its Atlanta office, alleging that employees there recorded the calls without telling them. Georgia allowed a recording with one party's consent; California required everyone's. On July 13, 2006, the California Supreme Court, taking the complaint's allegations as true at that early stage of the case, held that California's law applied to those calls (Kearney v. Salomon Smith Barney). The clients could go forward with a claim to stop future recordings. The court declined damages for past recordings because, until its ruling, a business acting in Georgia could reasonably have been unsure which state's law applied.
For calls between states, the Reporters Committee advises assuming the stricter state's law applies. On Sam's call the broker says at the start that the call is being recorded and asks each person to agree out loud, on the recording. Someone who joins late is asked as they join.
A guest outside the United States, or a subject regulated in the adviser's own field, is a question for a lawyer before the recording starts.
Permission to publish is a second agreement
Consent to record settles whether the recording may exist. Publishing it raises two more kinds of rights: the guest's rights in their identity and in their own words.
New York's Civil Rights Law section 50 protects identity: it makes it a misdemeanor to use a living person's name, portrait, picture, likeness or voice for advertising or trade without first getting that person's written consent (section 50).
For the words, the U.S. Copyright Office describes copyright as protecting original works of authorship fixed in a tangible form of expression, owned by the author (Circular 1). A recording fixes the guest's answers, so those answers can carry rights of their own. The circular does not say who owns an interview.
A short written release, signed before anything goes out, covers both. Sam's release lists:
- each use the broker plans: the full recording, short clips, written quotes, the transcript, Sam's first name and any photo;
- where the pieces may appear: the broker's website, email to the broker's own list and two named social accounts;
- that Sam sees every draft first and has five days to reply;
- the credit line, word for word;
- what happens if Sam later asks for a piece to come down.
Sam signs for the recording, the clips, the quotes and the first name, and refuses photos and video. The plan changes to audio only, and the signed release is filed where the recording will go.
The same opening on every recording
The broker starts every recording with the same few sentences, so the consent is on the recording and the plan is said out loud. The opening for Sam:
"It is March 3. I am recording this conversation with Sam, who sold a cleaning company last year, for a short audio piece for owners planning a sale. Sam, do I have your permission to record? As we agreed, you will see every draft before anything goes out, and we will leave out the buyer, the price and your company's name."
The interview goes on only after a clear yes from each person. If anyone says no, the recording stops and the broker takes notes by hand.
The day after the conversation
- Send the guest everything promised for this stage, with a date for the drafts.
- Note the time stamps of the strongest answers.
- Mark anything the guest asked to leave out, at the exact time it was said.
- File the recording, the transcript, the plan and the signed release together.
The interview plan worksheet puts the purpose, the permissions, the questions and the opening on one printable page. When the guest is a client, how to turn a client conversation into a public lesson covers what changes.
Sources
- Legal Information Institute, Cornell Law School, 18 U.S. Code section 2511, interception and disclosure of wire, oral, or electronic communications prohibited. Subsection (2)(d), the one-party consent rule and its exception.
- Reporters Committee for Freedom of the Press, Introduction to the Reporter's Recording Guide. The page shows no date.
- Supreme Court of California, Kearney v. Salomon Smith Barney, Inc., S124739, decided July 13, 2006, record at Stanford Law School's SCOCAL.
- New York State Senate, New York Civil Rights Law section 50, right of privacy.
- U.S. Copyright Office, Circular 1, Copyright Basics, revised September 2021.