Oral History and the Law
Despite the proliferation and rapid growth of oral history in recent years, there are very few reported legal cases that directly involve oral history or oral historians. Nevertheless, individuals who conduct oral history interviews or who use them must be knowledgeable about several legal issues. The basic publication on legal issues and oral history is John A. Neuenschwander's Oral History and the Law (Albuquerque: Oral History Association, 1993). Neither a guide to litigation nor a trial lawyer's handbook, this pamphlet is a "venture in preventative or prophylactic law intended to help readers avoid legal controversy."
Neuenschwander reminds readers that the OHA's "Principles and Standards" are a statement of professional ethics that provide a code of conduct which, if adhered to, lays a good foundation for avoiding legal problems.
Practitioners and users of oral history interviews must keep in mind the following:
- Copyright protection extends to oral history interviews.
- The type of employment arrangements that exist between interviewers and the employing party have a bearing on the copyright ownership of interviews.
- Contract and/or gift law comes into play whenever an oral historian or program uses a release form to secure a transfer of rights from the interviewee.
- An interview sealed or closed by an oral history program raises the question of whether a court or attorney can demand and obtain access.
- Laws govern defamation, libel, slander, and right of privacy. Portions of an oral history tape or transcript may be challenged in court. The accepted rule is that anyone who repeats, republishes, or redistributes a defamatory statement made by another can be held liable.
Neuenschwander concludes by urging oral historians to observe five rules:
- Anticipate potential legal problems and take appropriate preventative measures.
- Avoid oral promises and understandings. Get it in writing.
- Make sure that your legal-release forms fit your program.
- Alert your staff to all potential areas of liability. If you work alone, educate yourself.
- Do not let financial considerations alone deter you from consulting a lawyer. Preventative law s always less expensive and time-consuming than itigation.