Oral Interviews and the law of Copyright

In a recent newsletter article for Macavo.com entitled, "Copyright and the Oral Interview," Michael J. Leclerc made the following statement:

The technology era has made recording and sharing such interviews even easier. Cameras and video recorders in our phones make it very simple and easy to create interviews with our family members.

The important thing is to ask every subject to sign a form giving you permission to use the recording any way you like. If you do not do that, you are very limited as to what you can do. You can use it for your own purposes, but sharing it, putting it online, or selling it in any way would not be allowed.

He goes on to give the opinion about the permission form:

The agreement need not be extraordinarily complex. You must give the. Interview subject something in exchange for their agreement. This is called consideration. The consideration can be anything. It can be as simple as $1 or “love and affection.” Or it could be a larger financial amount. The exact form of the consideration does not need to be enumerated in the agreement.

He concludes by advising his readers:

Get a lawyer’s assistance to create a general document that you can use over and over again. If you have already conducted interviews without a signed document, go back and ask the subjects to sign an agreement.

If the subjects of past interviews are deceased, your safest bet is to have their heirs sign the agreement. All of the the heirs. Because the interview subjects’ words are copyrightable, you must get permission to use them.

Do you really need to do all this just to record your grandmother's childhood memories? I guess my first reaction as an attorney was agreement with Michael's statements. But I thought it would be important to carry this on a little bit further and see what both the law and professional historians have to say about copyright claims and oral interviews.

Established in 1966, the Oral History Association (OHA) has an international membership and serves a broad and diverse audience. Local historians, librarians and archivists, students, journalists, teachers, and academic scholars from many fields have found that the OHA provides both professional guidance and a collegial environment for sharing research. For some years it has produced a guide to the best principles and practices for oral history.

The Principles and Best Practices begins with a definition of oral history:

Oral history refers both to a method of recording and preserving oral testimony and to the product of that process. It begins with an audio or video recording of a first person account made by an interviewer with an interviewee (also referred to as narrator), both of whom have the conscious intention of creating a permanent record to contribute to an understanding of the past. A verbal document, the oral history, results from this process and is preserved and made available in different forms to other users, researchers, and the public. A critical approach to the oral testimony and interpretations are necessary in the use of oral history.

The part of the Principles and Best Practices that applies in this instance states as follows:

Oral historians inform narrators about the nature and purpose of oral history interviewing in general and of their interview specifically. Oral historians insure that narrators voluntarily give their consent to be interviewed and understand that they can withdraw from the interview or refuse to answer a question at any time. Narrators may give this consent by signing a consent form or by recording an oral statement of consent prior to the interview. All interviews are conducted in accord with the stated aims and within the parameters of the consent.

 Why this necessary and what needs to be done to ensure that the narrator gives proper consent is stated as follows:

Interviewees hold the copyright to their interviews until and unless they transfer those rights to an individual or institution. This is done by the interviewee signing a release form or in exceptional circumstances recording an oral statement to the same effect. Interviewers must insure that narrators understand the extent of their rights to the interview and the request that those rights be yielded to a repository or other party, as well as their right to put restrictions on the use of the material. All use and dissemination of the interview content must follow any restrictions the narrator places upon it.

This statement reflects the fact that the originator of a work (i.e. the narrator of an interview) has an ownership interest in the content of the interview created by the copyright law in effect. Currently, in the United States and any other signatory parties of the Berne Convention of 1886, copyright ownership is automatic and does not require any formal notice such as an oral or written claim to copyright. So the simple answer to the question of whether or not your grandmother needs to say or sign something is definitely answered as yes, she does. This permission is not contingent on an understanding that "nothing is going to be done" with the interview. Even republication of the interview to family members would violate the grandmother's copyright claim.

The next question is whether or not you really need to go see an attorney about making an oral interview? If the interview is being conducted by an organization or a repository such as a library or archive, the issue of copyright ownership is even more important. I would certainly suggest that any forms used by such institutions be reviewed by their legal counsel. One problem I see with involving an attorney in a copyright issue is that the average attorney is not going to know anything about copyright. Finding a knowledgeable practitioner who specializes in intellectual property may be difficult depending on where you live.

In a Baylor University document entitled "Introduction to Oral History," the guidelines given parallel those outlined by the OHA. The Introduction to Oral History states:

Narrators must give you written permission to record, reproduce, or distribute their words. With the storyteller’s permission, an interview with an eyewitness to history can become a primary document that provides significant historical information for years—and hopefully, generations—to come. Every oral history legal-release form should address at least the following matters.

The issues that must be addressed are the donor agreement, copyright assignment and future use of the interview. The narrator can negotiate whatever level of agreement and use he or she chooses to grant to the interviewer. A full explanation of narrator rights, samples of legal-release forms, language for restricting use, suggestions for avoiding potential legal claims, and even more, are available in Neuenschwander, John A., and John A. Neuenschwander. A Guide to Oral History and the Law. Oxford: Oxford University Press, 2009.

There are several sample oral history consent forms available online. For example, see Loyola University, Chicago Illinois Consent Forms. PDF file.

To summarize, yes, oral history is subject to copyright law. Yes, the best practice is to have a release form and copyright assignment. These forms should be carefully explained to the narrator. The only exception that I could think of would be situation where the interview was conducted and recorded and the only copy of the interview was given back to the narrator.

Thanks to Michael J. Leclerc for bringing up this issue and reminding me what I know I should do before my next oral interview.