An A-to-Z of Oral History at Columbia: “F” is for “fair use”

 

An A-to-Z of Oral History at Columbia is a monthly posting featuring the people, events, and organizations in the Oral History Archive at Columbia’s collections, as well as behind-the-scenes info about oral history methodology.

 

 

 

 

 

 


In this second post related to ethics (see the first post here, which in light of recent actions seems…rich 🤷🏾‍♀️), let’s explore claims to “fair use.”¬†

Nothing in this post should be construed as legal advice.

Based on a number of reference requests from writers and content producers (e.g. archival producers, documentary filmmakers, podcast creators) citing fair use in their requests for materials, this post is an attempt to pre-emptively educate about the practicalities and current conditions for using archival materials.

With the fairly recent overproduction of podcasts and streaming content, content creators–often lacking a common set of ethical standards and concerns about sourcing and using intellectual property (IP)–want to lean heavily on the idea of fair use. These claims are made under tight deadlines, demanding editors or producers, and in some cases a reluctance to engage in intensive research beyond “perfect finds” in YouTube or Google. These creators (re-producers?) want to interpret fair use as, “I can use anything I want as long as I claim it’s fair use.” This attempt is made without consulting any number of copyright and fair use resources that pretty clearly explain that fair use isn’t a rationale for using materials under copyright.

Rather, fair use, to my understanding, can be levied as a response to a claim by a copyright holder’s assertions of a violation using their IP. IP laws meant to protect all creators are crafted by the money-driven marketplace to advantage entities with the deep pockets and connections to pay attorneys by the hour. Instead of foreclosing research avenues and shutting down use, the recommendation here is to be aware of the criteria that, based on legal precedence, constitute fair use in a court of law. Stanford Libraries does a good job of looking at the context for fair use in regards to academic scholarship.

wall graffiti in black and white of assorted men with cameras and flashes illustrated
Photo by BP Miller on Unsplash

Before 2017, the oral history offices at Columbia required copyright transfer from interviewers working-for-hire and from narrators donating their stories to the archive. This is why you’ll see a number of interviews in our catalog listing Columbia as the copyright holder; Columbia holds the copyright to the written transcript and audio recording. Additionally, legacy content may note “PRCQ,” which means “permission required to cite and quote.” For a resource-scarce office, staff and student workers fielded and vetted requests to quote from oral histories. This runs counter to contemporary standards for open, anti-elitist and credentialed access. While we haven’t been able to execute a wholesale removal of PRCQ from our records, and we appreciate researchers’ diligence in asking for permission, permission to quote interviews is no longer required for scholarly research.

Moreover, in 2019 we stopped requiring copyright transfer. Instead, the archive asks narrators or donors for a non-exclusive license, which permits the archives and libraries’ units to preserve, catalog, archive, and provide access to research materials. Copyright remains with the interviewer and narrator, or whatever arrangement they’ve negotiated, as co-creators of the oral history.

This leaves content producers¬† with a number of considerations in seeking permission to use or license oral histories from OHAC’s collections:

  • In the Columbia’s online catalog (CLIO) entry, review the “Access and Use” field.
    • Does the material list Columbia University as the copyright holder? If yes,
    • Does the material list a narrator, interviewer, or entity other than Columbia as the copyright holder? If yes,
      • contact us and we might be able to put you in touch, though we don’t give out personal contact details for donors nor narrators.
      • you may need to do some internet research to find recent contact info, management info, office details, etc.

All that might leave the reader wondering, “What’s ‘fair’ about fair use?”

Amidst a mix of legal and ethical constraints, fair use should be seen as a useful eventuality. Instead, why not exercise diligence and creativity in doing research before going into production? Research is neither quick nor easy, but many productions have benefited from securing appropriate permissions and licensing and earned accolades for surfacing true gems that make their productions award-winning testaments.


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