A Guide to Oral History and the Law / Edition 4

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Overview


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 all the critical legal issues, including legal release agreements; copyright; privacy; screening, editing, and sealing procedures to protect against defamation; the protection of sealed and anonymous interviews from courtroom disclosure; the role of Institutional Review Boards (IRBs); teaching considerations; and the new issues raised by the use of interviews on the Internet. Neuenschwander's central focus is prevention, rather than litigation, and he cites not only the most recent court cases but also examples of procedures and policies that oral history programs have used effectively to avoid legal difficulties. The book provides more than a dozen sample legal release agreements applicable to a variety of situations. This essential volume will be used by professionals, family historians, and students alike.
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Editorial Reviews

From the Publisher

"What this excellent volume does provide, in an interesting, well-read, carefully-developed manner, is a strong practical foundation for oral historians to stand upon in advance of their enterprise." --American Journal of Legal History

"All historians whose subjects are still alive will benefit from this book, and I suspect that all historians will enjoy the crisp narrative. I hope this book finds its way into the hands of many historians and I look forward to hearing more about the ways that law shapes how we behave as historians, as we try to negotiate copyright and privacy law." --Oral History Review

"Here is the essential legal guide for all those who interview, collect interviews for libraries and archives, or use interviews for their own research. As a history professor, lawyer, and judge, John Neuenschwander is uniquely qualified to explain the various aspects of oral history and the law and to help oral historians avoid legal problems and resolve those issues their work may encounter." --Donald A. Ritchie, author of Doing Oral History

"John Neuenschwander is the undisputed expert regarding the legal aspects of oral history. He has been an outstanding and visible presence for practitioners in this field, and his writings have successfully addressed a significant need."--Libby Van Cleve, Yale University

"This book is a 'must read' for oral historians, records managers, archivists, manuscript curators, librarians and lawyers who advise them."--Gary M. Peterson, Esq., co-author of Archives and Manuscript Law

"[A] lively and accessible guide." -- Oral History

"Neuenschwander's clear articulation of ethical standards and their relationship to legal issues fills the gap when there is little or no precedent." -- The American Archivist

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Product Details

  • ISBN-13: 9780195365979
  • Publisher: Oxford University Press, USA
  • Publication date: 9/9/2009
  • Series: Oxford Oral History Series
  • Edition number: 4
  • Pages: 192
  • Product dimensions: 6.30 (w) x 9.30 (h) x 0.80 (d)

Meet the Author

John A. Neuenschwander is professor emeritus of history at Carthage College and a municipal judge for the City of Kenosha, Wisconsin. He lectures nationwide on the legal aspects of oral history.

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Table of Contents

Chapter 1: A Case Study
Chapter 2: 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
Conclusion
Chapter 3: 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
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 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
Chapter 5: 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?
Conclusion
Chapter 6: Copyright
Copyright in Nonfiction Works
Copyright Protection of Oral History: A Case Study
Using Nonfiction 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?
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
Chapter 7: 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
Conclusion
Chapter 8: Institutional Review Boards and Oral History
Origins and Applications
Trying to Redefine Research
The IRB Mindset
The Best Approaches to the IRB
Conclusion
Chapter 9: 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
Conclusion
Appendix 1: Sample Legal Release Agreements
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 Agreement
Appendix 2: Principles and Standards and Evaluation
Guidelines of The Oral History Association
Suggestions for Further Reading
Recommended Web Sites
Index

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