A Guide to Oral History and the Law (2nd edition)

ISBN : 9780199342518

John A. Neuenschwander
176 Pages
170 x 234 mm
Pub date
Oct 2014
Oxford Oral History Series
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According to the Oral History Association, the term oral history refers to "a method of recording and preserving oral testimony" which results in a verbal document that is "made available in different forms to other users, researchers, and the public." Ordinarily such an academic process would seem to be far removed from legal challenges. Unfortunately this is not the case. While the field has not become a legal minefield, given its tremendous growth and increasing focus on contemporary topics, more legal troubles could well lie ahead if sound procedures are not put in place and periodically revisited. A Guide to Oral History and the Law is the definitive resource for all oral history practitioners. In clear, accessible language it thoroughly explains all of the major legal issues including legal release agreements, the protection of restricted interviews, the privacy torts (including defamation), copyright, the impact of the Internet, and the role of Institutional Review Boards (IRBs). The author accomplishes this by examining the most relevant court cases and citing examples of policies and procedures that oral history programs have used to avoid legal difficulties. Neuenschwander's central focus throughout the book is on prevention rather than litigation. He underscores this approach by strongly emphasizing how close adherence to the Oral History Association's Principles and Best Practices provides the best foundation for developing sound legal policies. The book also provides more than a dozen sample legal release agreements that are applicable to a wide variety of situations. This volume is an essential one for all oral historians regardless of their interviewing focus.


A Note on Legal Terms
The Use of State Cases
The Use of Federal Cases
Prevention Is the Key
Chapter 1 A Case Study
Chapter 2 Legal Release Agreements
Drafting Legal Release Agreements
Deed of Gift Agreements
Contractual Agreements
Prefatory Language
Future Use Clauses
Transfer of Copyright
Transfer of Copyright by Nonexclusive License
Restricting, Sealing, and Masking Identity
Exculpatory and Indemnity Clause
Warranty Clauses
Right of Publicity Clauses
Legal Release Agreements for Interviewers
IRB Modifi ed Agreements
Legal Release Agreements for K-12 Projects
Explaining Legal Release Agreements
Chapter 3 Compelled Release of Interviews: Subpoenas and FOIA Requests
Oral History as Evidence
Oral History and Discovery in Civil Cases
Oral History and Discovery in Criminal Matters
An Arson Investigation
A Criminal Damage Investigation
The Boston College Case
Impact of the Boston College Case on Oral History?
Is There an Archival Privilege?
Informing Interviewees That Restrictions
Are Not Absolutes
Certifi cates of Confi dentiality
Admissibility by Statute
Special Hearings and Proceedings
Freedom of Information Requests
Chapter 4 Defamation
Republishers Beware
The Elements of Defamation
The Dead Cannot Be Defamed
Statute of Limitations
Organizations Also Have Reputations
Public Figures Bear a Heavier Burden
Negligence versus Actual Malice
Limited-Purpose Public Figures
Once a Public Figure Always a Public Figure
Pure Opinion Is Not Defamatory, But
The Major Categories of Defamation
Professional Competency: A Special Concern
Suggestions for Avoiding Defamation Lawsuits
Chapter 5 Privacy Issues: The Stealth Torts
False Light
False Light versus Defamation
Common False Light Claims
Docudramas and Photographs
Possible Links to Oral History
Public Disclosure of Private Facts
Disclosure of Private Facts in Public Records
Passage of Time and Public Figures
Possible Links to Oral History
Right of Publicity
Possible Links to Oral History
Do the Dead Have a Right to Privacy?
Chapter 6 Copyright
Copyright in Nonfiction Works
Copyright Protection of Oral History: A Case Study
Using Nonfi ction to Create Fiction
Joint Works
The Five Exclusive Rights of Copyright
Length of Copyright Protection
Licenses and Transfers
Fair Use of Interviews?
Suggestions for Analyzing Potential Infringement
Pre-Lawsuit Responses to Possible Infringement
To Sue or Not to Sue?
A Remedy for Infringement in Cyberspace
Registration Status Is Crucial
Selective Registration
The Orphan Interview Problem
Resources of the U.S. Copyright Office
Copyright and the Federal Government
Copyright Protection Elsewhere in the World
How to Dispense with Copyright
Chapter 7 Oral History and the Internet
Legal and Ethical Authority to Upload
Copyright and the Internet
Protecting Copyright Online
Click-Wrap Agreement Web Sites
Notice Only Web Sites
Free Access Web Sites
Using a Creative Commons License
The Privacy Torts Online
Chapter 8 Institutional Review Boards and
Oral History
Origins and Applications
Trying to Redefine Research
The IRB Mind-Set
Exempting Oral History from IRB Review
The Best Approaches to an IRB
Chapter 9 Is There a Duty to Report a Crime?
Societal versus Legal Expectations
Federal Misprision of Felony
State Misprision of Felony
Confession versus Accusation
Legal Duty?
Professional Ethics?
Personal Ethics?
Appendix 1 Sample Legal Release Forms
1. Deed of Gift
2. Deed of Gift with Restrictions
3. Contractual Agreement
4. Contractual Agreement with Restrictions
5. Deed of Gift: Volunteer Interviewer
6. Deed of Gift: Independent Researcher
7. Deed of Gift: Interviewer as Joint Author
8. Deed of Gift: Next of Kin
9. IRB Consent Form
10. IRB Consent Form & Deed of Gift
11. Permission to Use: Middle & High School
12. Work-Made-for-Hire Agreement
13. Assignment of Copyright in a Work Intended as a Work-Made-for-Hire
Appendix 2 Principles and Best Practices for Oral History
Suggestions for Further Reading
Recommended Web Sites

About the author: 

Professor emeritus of history, Carthage College; municipal judge, City of Kenosha, Wisconsin

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