A Guide to Oral History and the Law

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  • Edition: 4th
  • Format: Paperback
  • Copyright: 2009-09-28
  • Publisher: Oxford University Press
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The Oral History Association published the first edition of Oral History and the Law as a 24-page pamphlet in 1986; a second edition (53 pp.) in 1993; and a third edition (93 pp.) in 2002. The need for an expanded, book-length treatment is evident, not because of an upsurge in litigation, but because of the vast expansion in the practice of oral history and the new ways in which interviews are being utlized. Like any growth industry in America, oral history is inevitably intertwined with the legal system from prevention through litigation. This book covers legal release agreements; protecting sealed interviews and anonymous interviews from courtroom disclosure; defamation; copyright; the Internet; Institutional Review Boards (IRBs), oral history as evidence; the duty to report a crime; and teaching considerations. It also includes examples of best practices and legal precautions, using case studies to illustrate each point.

Author Biography

John Neuenschwander is Professor of history at Carthage College, municipal judge for the City of Kenosha, Wisconsin, and site visitor for the Association for the Accreditation of Human Research Protection Programs.

Table of Contents

A Case Study
Legal Release Arguments
Drafting Legal Release Agreement
Deed of Gift Agreements
Contractual Agreements
Prefatory Language
Future Use Clauses
Transfer of Copyright
Non-exclusive Licenses for Interviewees
Restricting, Sealing, and Masking Identity
Warranty Clauses
Indemnity Clauses
Right of Publicity Clauses
Legal Release Agreements for Interviewers
IRB Modified Agreements
Legal Release Agreement for K-12 Projects
Explaining Legal Release Agreements
Compelled Release of Interviews: Subpoenas and FOIA Requests
Oral History as Evidence
Oral History and Discovery
Three Illustrative Cases
Is there a Scholar's Privilege?
Is there an Archival Privilege?
Informing Interviewees that Restrictions are Not Absolutes
Certificates of Confidentiality
Admissibility by Statute
Special Hearings and Proceedings
Freedom of Information Requests
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 vs. 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
Privacy Issues: The Stealth Torts
False Light
False Light vs. 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?
Copyright in Nonfiction Works
Copyright Protection of Oral History: A Case Study
Using Nonfiction 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?
Registration Status is Critical
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
Oral History on the Internet
Legal Authority to Upload
Copyright and the Internet
Defamation Online
Protecting Copyright Online
Click-Wrap Agreement Web sites
Notice Only Web sites
Free Access Web sites
Institutional Review Boards and Oral History
Origins and Applications
Trying to Redefine Research
The IRB Mindset
The Best Approaches to the IRB
Is There A Duty To Report A Crime?
Societal v. Legal Expectations
Federal Misprision of Felony
State Misprision of Felon
Confession vs. Accusation
No Legal Duty
Professional Ethics
Personal Ethics
Sample Legal Release Agreements
Deed of Gift
Deed of Gift with Restrictions
Contractual Agreement
Contractual Agreement with Restrictions
Deed of Gift: Volunteer Interviewer
Deed of Gift: Independent Researcher
Deed of Gift: Interviewer as Joint Author
Deed of Gift: Next of Kin
IRB Consent Form
IRB Consent Form & Deed of Gift
Permission to Use: Middle & High School
Work Made For Hire Agreement
Assignment of Copyright in a Work Intended as a Work Made For Hire Agreement
Principles and Standards and Evaluation Guidelines of The Oral History Association
Suggestions for Further Reading
Recommended Web Sites
Table of Contents provided by Publisher. All Rights Reserved.

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