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Privacy : Privacy and Oral History

Books about Privacy and Oral History

The Legal Ramifications of Oral History

Legal Release Agreements

The transfer of an interviewee memories (intellectual property) ownership of this property right to the interviewer or the oral history program is a legal release agreement. To be legally binding, such agreements must be drafter in accordance with the legal mandates of the state in which the program is located.

The most common type of transfer agreement is a deed of gift. A gift, or inter vivos donation, is the voluntary transfer of any property other than real estate. There elements are required: (1) the intent to donate, (2) actual delivery, and (3) the acceptance of the gift. In the context of an oral history interview, the intent would be satisfied by the individual's willingness to be interviewed and then to gift the resulting recording and transcript.

 Contract style -agreements are used to a lesser extent. To qualify as legally binding contracts, such an agreement must contain four elements: (1) agreement, (2) consideration, (3) competent parties, and (4) a lawful objective.  A signed agreement would satisfy the agreement requirement.

 Beyond the importance of using a legally binding deed of gift or contract type of transfer agreement, two other essential drafting issues that should always be carefully considered.The first is the future-use clause. The most effectively drafted future-use clauses articulate the necessary specifics while also providing reasonable anticipation of all possible future uses. The following clause exemplifies this balance: "Future uses of my interview/s may include quotation from and publication/broadcast in any media including the Internet."  The second essential drafting consideration is to make sure that the legal release agreement obtains the transfer of copyright from the interviewee. Physical possession is meaningless without the copyright. The U.S. Copyright Act, which is in accord with international standards, specifically requires that any transfer of copyright be in writing to be legally binding. The act prescribes no particular form, only a simple recital.

The best legal release agreements contain precise but not overly legalistic language, document the full meeting of the minds between the parties on all relevant  issues, and provide a roadmap for future use and administration.


Ritchie, D. A. (2011). The Oxford handbook of oral history. New York: Oxford University Press. Chapter 11 - James A. Neuenschwander

Challenges to Interview Restrictions

A Freedom of Information Act request would likely supersede any restriction or seal placed on an interview held by a public institution. Attempts to create an evidentiary privilege to protect scholars and/or collections from having to honor a subpoena have not been successful.  There are real legal limits to access restrictions.

Defamation

Defamation is an omnibus term that covers both libel and slander. According to the Oxford English Dictionary, defamation can be defined as the bringing of ill fame or dishonor upon any one; disgrace, shame. Slander is the utterance or dissemination of false statements or reports concerning a person, or malicious misrepresentation of his actions, in order to defame or injure him; calumny, defamation. Libel is to make libelous accusations or statements; to spread defamation.

Libel involves written statements, and slander oral ones. A defamatory statement from the audio portion of an interview would be considered slander; if the offending statement was contained in a transcript, it would be libel.

To be defamed, five elements usually have to be established:

1. The words were in fact defamatory;

2. The person crying foul was clearly the object of the words;

3. The person who is being sued published the words to a third party;

4. The words were damaging to the reputation of the person suing;

5. The person publishing or uttering the words was at fault.

 

According to 3 Federal Circuit Courts of Appeal, one a public figure, always a public figure.


Ritchie, D. A. (2011). The Oxford handbook of oral history. New York: Oxford University Press. Chapter 11 - James A. Neuenschwander