A Guide to Oral History and the Law (Oxford Oral History Series)

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. Cover 1 A Guide to Oral History and the Law 4 Copyright 5 Dedication 6 Contents 8 Preface 14 A Note on Legal Terms 15 The Use of State Cases 15 The Use of Federal Cases 16 Prevention Is the Key 17 Acknowledgments 18 1 A Case Study 22 2 Legal Release Agreements 24 Drafting Legal Release Agreements 25 Deed of Gift Agreements 26 Contractual Agreements 26 Prefatory Language 27 Future Use Clauses 27 Transfer of Copyright 30 Transfer of Copyright by Nonexclusive License 30 Restricting, Sealing, and Masking Identity 31 Exculpatory and Indemnity Clauses 33 Warranty Clauses 35 Right of Publicity Clauses 36 Legal Release Agreements for Interviewers 36 IRB Modified Agreements 37 Legal Release Agreements for K–12 Projects 38 Explaining Legal Release Agreements 39 Conclusion 40 3 COMPELLED RELEASE OF INTERVIEWS: SUBPOENAS AND FOIA REQUESTS 41 Oral History as Evidence 41 Oral History and Discovery in Civil Cases 42 Oral History and Discovery in Criminal Matters 44 An Arson Investigation 45 A Criminal Damage Investigation 45 The Boston College Case 46 Impact of the Boston College Case on Oral History? 48 Is There an Archival Privilege? 49 Informing Interviewees That Restrictions Are Not Absolutes 51 Certificates of Confidentiality 52 Admissibility by Statute 53 Freedom of Information Requests 54 Conclusion 55 4 Defamation 56 Republishers Beware 57 The Elements of Defamation 60 The Dead Cannot Be Defamed 60 Statute of Limitations 61 Organizations Also Have Reputations 62 Public Figures Bear a Heavier Burden 62 Negligence versus Actual Malice 63 Limited-Purpose Public Figures 65 Once a Public Figure Always a Public Figure 65 Pure Opinion Is Not Defamatory, But 66 The Major Categories of Defamation 68 Professional Competency: A Special Concern 68 Suggestions for Avoiding Defamation Lawsuits 70 5 PRIVACY ISSUES: THE STEALTH TORTS 72 False Light 73 False Light versus Defamation 73 Common False Light Claims 74 Docudramas and Photographs 75 Possible Links to Oral History 76 Public Disclosure of Private Facts 76 Disclosure of Private Facts in Public Records 78 Passage of Time and Public Figures 79 Possible Links to Oral History 80 Right of Publicity 81 Possible Links to Oral History 82 Do the Dead Have a Right to Privacy? 82 Conclusion 82 6 Copyright 84 Copyright in Nonfiction Works 85 Copyright Protection of Oral History: A Case Study 85 Using Nonfiction to Create Fiction 86 Ownership 87 Joint Works 87 Works-Made-for-Hire 90 The Six Exclusive Rights of Copyright 92 Length of Copyright Protection 93 Licenses and Transfers 94 Fair Use of Interviews? 94 Suggestions for Analyzing Potential Infringement 99 Pre-Lawsuit Responses to Possible Infringement 100 To Sue or Not to Sue? 101 A Remedy for Infringement in Cyberspace 102 Registration Status Is Crucial 102 Selective Registration 103 The Orphan Interview Problem 104 Resources of the U.S. Copyright Office 108 Copyright and the Federal Government 108 Copyright Protection Elsewhere in the World 109 How to Dispense with Copyright 110 7 Oral History and the Internet 112 Legal and Ethical Authority to Upload 112 Copyright and the Internet 114 Protecting Copyright Online 117 Click-Wrap Agreement Web Sites 117 Notice Only Web Sites 119 Free Access Web Sites 119 Using a Creative Commons License 120 The Privacy Torts Online 121 Conclusion 123 8 Institutional Review Boards and Oral History 124 Origins and Applications 124 Trying to Redefine Research 126 The IRB Mind-Set 127 Excluding Oral History from IRB Review? 128 The Best Approaches to an IRB 129 Conclusion 132 9 Is There a Duty to Report a Crime? 133 Societal versus Legal Expectations 133 Federal Misprision of Felony 134 State Misprision of Felony 135 Confession versus Accusation 136 Legal Duty? 136 Professional Ethics? 137 Personal Ethics? 138 Conclusion 139 Appendix 1: Sample Legal Release Forms 142 1 Deed of Gift 142 2 Deed of Gift with Restrictions 143 3 Contractual Agreement 143 4 Contractual Agreement with Restrictions 144 5 Deed of Gift: Volunteer Interviewer 144 6 Deed of Gift: Independent Researcher 145 7 Deed of Gift: Interviewer as Joint Author 145 8 Deed of Gift: Next of Kin 146 9 IRB Consent Form 146 10 IRB Consent Form & Deed of Gift 147 11 Permission to Use: Middle & High School 148 12 Work-Made-for-Hire Agreement 149 13 Assignment of Copyright in a Work Intended as a Work-Made-for-Hire 150 Appendix 2: Principles and Best Practices for Oral History 152 Introduction 152 General Principles for Oral History 152 Best Practices for Oral History 153 Pre-Interview 153 Interview 154 Post-Interview 155 Notes 156 Suggestions for Further Reading 165 Recommended Web Sites 166 Index 168 Content: Contents Preface A Note on Legal Terms The Use of State Cases The Use of Federal Cases Prevention Is the Key Acknowledgment 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 Conclusion 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 Conclusion 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? Conclusion Chapter 6 Copyright Copyright in Nonfiction Works Copyright Protection of Oral History: A Case Study Using Nonfi ction to Create Fiction Ownership Joint Works Works-Made-for-Hire 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 Conclusion 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 Conclusion 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? Conclusion 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 Notes Suggestions for Further Reading Recommended Web Sites Index 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. La 4e de couverture indique : "A guide to oral history and the law is the definitive resource for all practitioners of oral history. In clear, accessible language, it thoroughly explains the major legal issues that oral historians face, including legal release agreements, copyright, privacy, and the role of Institutional Review Boards (IRBs), and offers helpful suggestions on how to put sound legal procedures in place. The second edition analyzes relevant new court cases and reflects the impact of digital technology on oral history and the law. It also provides a more detailed discussion of both the ethical and legal obligations to fully inform narrators about the limits of protection for sealed and restrited interviews. This essential volume will be used by professionnals, family historians, and students alike."