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.
Table of Contents
ContentsPrefaceA Note on Legal TermsThe Use of State CasesThe Use of Federal CasesPrevention Is the KeyAcknowledgmentChapter 1 A Case StudyChapter 2 Legal Release AgreementsDrafting Legal Release AgreementsDeed of Gift AgreementsContractual AgreementsPrefatory LanguageFuture Use ClausesTransfer of CopyrightTransfer of Copyright by Nonexclusive LicenseRestricting, Sealing, and Masking IdentityExculpatory and Indemnity ClauseWarranty ClausesRight of Publicity ClausesLegal Release Agreements for InterviewersIRB Modifi ed AgreementsLegal Release Agreements for K-12 ProjectsExplaining Legal Release AgreementsConclusionChapter 3 Compelled Release of Interviews: Subpoenas and FOIA RequestsOral History as EvidenceOral History and Discovery in Civil CasesOral History and Discovery in Criminal MattersAn Arson InvestigationA Criminal Damage InvestigationThe Boston College CaseImpact of the Boston College Case on Oral History?Is There an Archival Privilege?Informing Interviewees That RestrictionsAre Not AbsolutesCertifi cates of Confi dentialityAdmissibility by StatuteSpecial Hearings and ProceedingsFreedom of Information RequestsConclusionChapter 4 DefamationRepublishers BewareThe Elements of DefamationThe Dead Cannot Be DefamedStatute of LimitationsOrganizations Also Have ReputationsPublic Figures Bear a Heavier BurdenNegligence versus Actual MaliceLimited-Purpose Public FiguresOnce a Public Figure Always a Public FigurePure Opinion Is Not Defamatory, ButThe Major Categories of DefamationProfessional Competency: A Special ConcernSuggestions for Avoiding Defamation LawsuitsChapter 5 Privacy Issues: The Stealth TortsFalse LightFalse Light versus DefamationCommon False Light ClaimsDocudramas and PhotographsPossible Links to Oral HistoryPublic Disclosure of Private FactsDisclosure of Private Facts in Public RecordsPassage of Time and Public FiguresPossible Links to Oral HistoryRight of PublicityPossible Links to Oral HistoryDo the Dead Have a Right to Privacy?ConclusionChapter 6 CopyrightCopyright in Nonfiction WorksCopyright Protection of Oral History: A Case StudyUsing Nonfi ction to Create FictionOwnershipJoint WorksWorks-Made-for-HireThe Five Exclusive Rights of CopyrightLength of Copyright ProtectionLicenses and TransfersFair Use of Interviews?Suggestions for Analyzing Potential InfringementPre-Lawsuit Responses to Possible InfringementTo Sue or Not to Sue?A Remedy for Infringement in CyberspaceRegistration Status Is CrucialSelective RegistrationThe Orphan Interview ProblemResources of the U.S. Copyright OfficeCopyright and the Federal GovernmentCopyright Protection Elsewhere in the WorldHow to Dispense with CopyrightChapter 7 Oral History and the InternetLegal and Ethical Authority to UploadCopyright and the InternetProtecting Copyright OnlineClick-Wrap Agreement Web SitesNotice Only Web SitesFree Access Web SitesUsing a Creative Commons LicenseThe Privacy Torts OnlineConclusionChapter 8 Institutional Review Boards andOral HistoryOrigins and ApplicationsTrying to Redefine ResearchThe IRB Mind-SetExempting Oral History from IRB ReviewThe Best Approaches to an IRBConclusionChapter 9 Is There a Duty to Report a Crime?Societal versus Legal ExpectationsFederal Misprision of FelonyState Misprision of FelonyConfession versus AccusationLegal Duty?Professional Ethics?Personal Ethics?ConclusionAppendix 1 Sample Legal Release Forms1. Deed of Gift2. Deed of Gift with Restrictions3. Contractual Agreement4. Contractual Agreement with Restrictions5. Deed of Gift: Volunteer Interviewer6. Deed of Gift: Independent Researcher7. Deed of Gift: Interviewer as Joint Author8. Deed of Gift: Next of Kin9. IRB Consent Form10. IRB Consent Form & Deed of Gift11. Permission to Use: Middle & High School12. Work-Made-for-Hire Agreement13. Assignment of Copyright in a Work Intended as a Work-Made-for-HireAppendix 2 Principles and Best Practices for Oral HistoryNotesSuggestions for Further ReadingRecommended Web SitesIndex