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By John A. Neuenschwander

Last fall the Oral History Association approved a new set of ethical guidelines.  The goal of the task force that prepared the new General Principles for Oral History and Best Practices for Oral History was to provide a more condensed and usable set of guidelines.  The leadership of the Association stressed that the new ethical guidelines would be reviewed periodically to determine if they needed to be amended and/or expanded.  To that end President Michael Frisch recently invited oral historians to join in an online dialogue via the Social Network which can be found on the OHA website.  There will also be a session on the new Principles and Best Practices at the annual meeting of the Association in Atlanta on Saturday, October 30th from 12:00 p.m. to 1:15 p.m. in Room CR 123.

The new Principles and Best Practices like ethic codes of most academic disciplines or fields are intended to help practitioners avoid unprofessional conduct and more indirectly the legal difficulties than can arise from serious ethical lapses.  Some of the suggested practices and procedures in the new Principles and Best Practices are clearly law based while others are derived solely from ethical considerations.   The focus of this is blog is not any specific section of the new code but rather on the absence of any guidelines on the legal standing of interviewers.

From a legal standpoint, there is clearly no seminal court case or specific section of the Copyright Act that designates an interviewer as a joint author.  Despite the absence of any black letter law, there are a number of impressive sources that point to the very real possibility that interviewers are in fact joint authors.  The most telling support for this position comes from the U.S. Copyright Office.  According to their policy manual, Compendium II, “A work consisting of an interview often contains copyrightable authorship by the person interviewed and the interviewer. Each owns the expression the absence of an agreement to the contrary.”   There is also at least one lower court decision and several copyright experts who support the position of the Copyright Office.

The point of all this is that the new guidelines should include some reference to the possible copyright interest of interviewers for both ethical and legal reasons.   Perhaps the best was to do this would be to add a new Principle: Interviewers may also hold a copyright interest in the interviews that they conduct and should always be so informed by the program or archive for which they work or volunteer of their potential rights. Programs and archives who utilized interviewers who are not full-time employees must insure that such interviewers understand the extent of their rights to the interview before they are asked to sign a release.  Interviewers should also receive appropriate acknowledgement for their work in all forms of citation and usage.

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

John A. Neuenschwander is professor emeritus of history at Carthage College and the municipal judge for the City of Kenosha, Wisconsin. He lectures nationwide on the legal aspects of oral history.  His new book, A Guide to Oral History and the Law, 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.  In the article below he looks at defamation cases that involve professional responsibility.  Check out his other OUPblog posts here.

In 2007 the California Supreme Court decided the case of Hebrew Academy v. Goldman, 42 Cal. 4th 883 (2007). The case is noteworthy because it arose from the publication of an oral history transcript by the Regional Oral History Office at the University of California, Berkeley. What is also noteworthy is that the alleged defamation involved the professional reputation of the founder of a school. While the media always plays up defamation cases that involve claims of criminal activity or immorality, there are numerous lawsuits filed each year by individuals who believe that their standing in the workplace was damaged by false statements about their professional skills or decision making.

Since oral historians on all levels regularly undertake interviews with business leaders, professionals, and workers; it is important that these interviews be carefully audited for potentially defamatory statements. In other words, just because an interviewee is not accusing someone of criminal activity or immoral conduct, statements that undermine a person’s reputation in the workplace can be just as harmful.

In 2009 a number of cases involving professional reputation were heard in courts across the nation. The following three cases have been selected to spotlight the types of statements that can lead someone to file a lawsuit for defamation. In Ma’Ayergi and Associates LLC v. Pro Search Inc., 115 Conn. App. 662 (Conn. App. 2009), a recently acquired business partner quietly spread the word to the plaintiff’s clients that he and his employees were incompetent to handle many of key problems because they lacked the necessary qualifications. In Ferguson v. Williams & Hunt Inc. 2009 WL23461635 Utah (unpublished), a partner in a law firm who was terminated for overbilling the firm’s major client sued for defamation based on a communication by the other partners to the client that the former partner’s billing statements could not be trusted for their accuracy. The final case, Richards v. Construction and General Bldg. Laborers Local 79, 2009 WL3224157 New York (unreported), involved a claim of defamation emanating from a small billboard at a construction site and leaflets that were handed out by union members. The plaintiff, the head of a corporati