Local History

Collecting Forms and Agreements

This is an article that originally appeared in Exchange, a newsletter published by the Wisconsin Historical Society. (Volume 40, Numbers 3 & 4, 1998) It is the 32nd in a series of articles titled Conservation Corner. The series features information about maintaining an adequate environment for the storage and exhibition of historical collections, employing proper collection care techniques, and recording and cataloging historical collections. It was written by Tom McKay, retired local history coordinator for the Wisconsin Historical Society.

A deed of gift is the document completed by a donor and a historical society representative to prove that the historical society has become legal owner of items received by gift. An oral history release form is the document completed by an interviewer and an interviewee to prove that the historical society has the legal right to use the information collected through an interview for publications, exhibits, public programs, research and other educational purposes.

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The following descriptions and samples of deeds of gift and oral history release forms are adapted from articles that appeared in earlier issues of Exchange. Dale Treleven, former oral historian at the Wisconsin Historical Society, authored the article about oral history legal agreements for the May/June 1981 issue. Tom McKay, former coordinator of the Office of Local History, wrote about deeds of gift in the Summer 1988 issue.

When a historical society accepts a donation of historical materials for its collection, it must create written documentation of the transaction. This documentation serves several purposes. First, it begins the process of expressing the society's thanks for the donation and demonstrates to the donor the society's commitment to provide appropriate care and management for the materials received. Second, the written documentation records the particulars of the transaction such as the date of the gift and the donor's address for future reference. Finally, the documentation establishes that the historical society has become legal owner of the materials it has accepted. The form of written documentation used by most historical societies to establish ownership of the historical materials they receive is called a deed of gift.

Every local historical society should employ a deed of gift or a similar document every time it accepts a donation of historical materials. A society that cannot prove ownership of the items in its collection cannot guarantee the preservation of these items for the future. Too many historical societies have painfully relinquished, to a donor or a donor's heirs, items given for the collection — but made as a gift by a verbal agreement only.

Deed of gift forms vary slightly from institution to institution, but all include similar wording. This wording must clearly state that the donor gives the materials listed to the historical society as an unrestricted gift. The term unrestricted gift means that the donor cannot determine how the materials will be exhibited, stored, organized, or used in the educational mission of the historical society. These decisions become the responsibility of the society as guided by its goals and objectives. As an unrestricted gift, the society may retain or dispose of the materials according to the best interests of the organization. This does not mean that historical societies dispose of collections casually. In the vast majority of instances, the goals of a historical society are served and enhanced by retaining and preserving items donated as part of the collection. However, a society must have the right to dispose of materials in its collection when this action is in the best interest of the organization or the preservation of the materials in question.

A deed of gift form should always include language stating clearly that the materials being transferred are the legal property of the donor. Such a statement reinforces the intent of the historical society and the donor to enter into a legal and ethical transaction. The form must provide a space for the donor to sign and date the document and a corresponding area for an authorized representative of the historical society to enter a signature and date. In most cases, the society's president or, if it has a staff, the paid director signs the deed or gift.

The deed of gift form provides blank space to list by item the historical materials being donated, with a brief description of each. Two copies of the form are completed, signed and dated. The society keeps one copy for its files and the donor receives the other. The society's copy should be placed in a file organized alphabetically according to the name of the donor. While the donor copy of the form acknowledges the legal transaction, the historical society should always send, in addition, a personal letter signed by the president or director expressing thanks to the donor for the contribution of historical materials.

Deed of gift forms can acknowledge the acceptance of both artifacts and archival materials into the historical society collection. In the case of artifacts, the assignment of accession numbers to the artifacts is a relatively simple process. Many historical societies assign accession numbers to artifacts at the time the donation is received and list the artifacts according to these numbers on the deed of gift form. The assignment of accession numbers represents the first step in cataloging artifacts — the topic of the next article in this series.

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Any historical agency or other group creating tape-recorded oral history interviews should require each interviewee to sign a legal agreement form. The completed form is a statement that the interviewee understands the terms and conditions under which the interview was completed, and that he/she further understands that the interview tapes and written summaries thereto may be used by future researchers. While it may seem like an imposition to have an interviewee sign such a form or for the agency to keep track of yet another sheet of paper, a signed legal agreement will verify that interviewee rights have been transferred to the agency sponsoring the interview, and that hard feelings or even legal complications may be avoided in the future.

After the Wisconsin Historical Society launched a formal oral history program in the spring of 1974, one of the first tasks was to draft a model legal agreement form. Drawing upon agreements administered by other oral history programs, Society officials finally agreed on tentative wording. The form, slightly modified after review and comment by counsel in the state Attorney General's Office, is the model shown below.

Local societies, community organizations, and individuals involved in oral history interviewing projects are urged to duplicate the language of the model form, substituting, of course, the name of the specific sponsoring organization. Several basic suggestions for administering the form may be helpful:

1. Tell the interviewee before the actual taping that he/she will be asked to sign a legal agreement form.
2. Obtain a signature on the legal form at the end of each interview session in cases where the discussion requires more than one sitting.
3. Fill out an original and one copy of the legal agreement form. Offer the copy to the interviewee for his/her files; keep the original in a safe place.

Most interviewees will accept the necessity for and conditions of a legal agreement form without hesitation. However, on very rare occasions an individual may wish to place restrictions on the recorded discussion for a specific period. In such instances, the restriction wording is entered in the space under the line, "except for the conditions specified below, if any:", on the model form. The most common condition is a restriction on use for a specified period. If, for example, an interviewee wanted to place a ten-year use restriction on an interview held July 1, 1980, a clause would be included in the legal agreement form to that effect: "I desire that this interview be restricted for a period of 10 years, terminating on June 30, 1990." The less complicated the language and condition of restrictions, the better. Any restrictions, of course, must be scrupulously honored by the project sponsor.

Copyright law recognizes that each person whose voice is recorded on the tape is a joint-owner of rights to that recording. Thus, the interviewer also should sign a legal agreement form, assigning his or her rights to the agency sponsoring the taping project or serving as the final repository for the interview materials.

In the early years of modern oral history, few people thought or worried about legal title to tape recordings. Today, however, the legal form is an essential part of the interview. Clear legal title to the information on the tape and to written summaries thereto will assure the final custodian of the material that the interviewee (and interviewer) understood fully the circumstances under which the discussion was held.

Readers are encouraged to contact the writer for additional information about administering the legal agreement form in general, and handling specific restrictions in the event they are desired by an interviewee.