Danielson 2010

SAA SAMPLER
LAW & ETHICS

11/16”
LAW & ETHICS 6” 6” .78” 6”
PRIVACY & CONFIDENTIALITY PERSPECTIVES

ore areas
“ Privacy and Confidentiality Perspectives brings together a diverse selection
Archives,
of thoughtful and provocative essays that explore the legal, ethical,
s, is now administrative, and institutional considerations that shape archival
ives and debates concerning the administration of access to records containing
e current personal information. It is essential reading for archivists, records
this new managers, archival educators and students who wish to gain a deeper
under-standing of this difficult archival issue—and it is bound to stimu-
umented. late broader reflection and debate.” 9”
s quality.
—Nadine Strossen
sion.”
President, American Civil Liberties Union, and
Professor of Law, New York Law School
9”
ARCHIVISTS & ARCHIVAL RECORDS
“ Privacy and Confidentiality Perspectives fills a crucial void in the corpus of

archival literature. . . . Based upon the knowledge and experience of
ssioning, professionals who already have been forced to navigate their way through
he single the maze of competing interests and the seemingly contradictory
easingly precedents, the readings describe situations to which archivists from
any type of repository can relate. Archival educators especially will find
t should this anthology a gold mine of current information that can be used to
stimulate thought and discussion in classes and help to prepare the
next generation of archivists for the challenges they will face.”
Edited by Menzi L. Behrnd-Klodt
—Timothy L. Ericson
Director of Archival Studies,
Peter J. Wosh
University of Wisconsin-Milwaukee
Browse archives titles at

www.archivists.org/catalog
PMS 728 Pantone Process Black
Navigating Legal
Navigating LegalIssues
Issues The
The Ethical
Ethical Archivist
Archivist Privacy &
Privacy and Confidentiality
Confidentiality
in Archives Chapter
Chapter 25 Perspectives:: Archivists
Book Title
in Archives
Book 5
Title Book Title Archivists &
Perspectives
Chapter 21 “Case
“Case Study: The
The Cigarette
Cigarette Papers.
” and Archival Records
Goes Here Goes Here Goes Here
Study: Papers.”
Chapter 21 Archival Records
“Copyright
“Copyright and
& Related
Related Rights
Rights Issues:
Issues: by Elena S. Danielson
by Elena S. Danielson
Chapter 10
Permissions, Releases,
Releases, Music,
Music, and
Chapter 10
“Balancing Privacy
Privacy and
and Access:
Access:
Permissions, and
Moral Rights.”
Rights.”
“Balancing
Opening the
the Mississippi
Mississippi State
State
Moral
Opening
by Menzi
by Menzi L.
L. Behrnd-Klodt
Behrnd-Klodt Sovereignty Commission
Sovereignty Commission Records.”
Records.”
by Sarah
by Sarah Rowe-Sims,
Rowe-Sims,Sandra
SandraBoyd,
Boyd,
and H.T.
and Holmes
H.T. Holmes
Compiled with
Compiled with an
an Introduction
Introduction
by
by Lisa
Lisa A.
A. Mix
Mix
SAA SAMPLER i
SAA SAMPLER
About the SAA Sampler Series
LAW & ETHICS

The SAA Sampler Series features collections of select chapters from authoritative
books on archives published by the Society of American Archivists. Produced
LAW & ETHICS

exclusively electronically, the samplers are designed to give readers an overview of
a pertinent topic as well as a taste of the full publications, which are available at
www.archivists.org/bookstore. The content has been reproduced as it appeared
in layout in the original publications. Pages have two sets of folios. The running
11/16”
head is the page numbering from the actual book. The footers have been added
6” 6” .78” 6”
and reflect page numbering for this compilation.
PRIVACY & CONFIDENTIALITY PERSPECTIVES
Law and Ethics Contents

ore areas
“ Privacy and Confidentiality Perspectives brings together a diverse selection
Archives,
of thoughtful and provocative essays that explore the legal, ethical,
s, is now administrative, and institutional considerations that shape archival
ives and debates concerning the administration of access to records containing
e current personal information. It is essential reading for archivists, records
this new managers, archival educators and students who wish to gain a deeper
under-standing of this difficult archival issue—and it is bound to stimu-
umented. late broader reflection and debate.” 9”
s quality.
—Nadine Strossen
sion.”
President, American Civil Liberties Union, and
Professor of Law, New York Law School
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
9”
ARCHIVISTS & ARCHIVAL RECORDS
“ Privacy and Confidentiality Perspectives fills a crucial void in the corpus of

archival literature. . . . Based upon the knowledge and experience of
ssioning,
he single
easingly
by Lisa A. Mix professionals who already have been forced to navigate their way through
the maze of competing interests and the seemingly contradictory
precedents, the readings describe situations to which archivists from
any type of repository can relate. Archival educators especially will find
t should this anthology a gold mine of current information that can be used to
stimulate thought and discussion in classes and help to prepare the
next generation of archivists for the challenges they will face.”
Edited by Menzi L. Behrnd-Klodt
“Copyright and Related Rights Issues: Permissions, Releases, Music, and

—Timothy L. Ericson
Director of Archival Studies,
Peter J. Wosh
University of Wisconsin-Milwaukee
Moral Rights,” Chapter 21 from Navigating Legal Issues in Archives . . . . 6

by Menzi L. Behrnd-Klodt Browse archives titles at
www.archivists.org/catalog
“Case Study: The Cigarette Papers,” Chapter 5 from The Ethical PMS 728 Pantone Process Black
Archivist
Navigating . . .Issues
Legal . . . . . .The
. .Ethical
. . . .Archivist
. . . . . . . . . Privacy
. . . . .& .Confidentiality
. . . 27
by Elena S. Danielson
Book Title
in Archives
Book
Chapter 5
Title Book Title : Archivists &
Perspectives
Goes“Balancing
Here Goes Here Goes Here
“Case Study: The Cigarette Papers.”
Chapter 21 Archival Records
“Copyright Privacy
& Related Rights and Access:
Issues: by Elena Opening
S. Danielson the Mississippi State10
Chapter
Sovereignty Commission Records,” Chapter 10 from Privacy and
Permissions, Releases, Music, and
“Balancing Privacy and Access:
Moral Rights.”
Confidentiality
L. Behrnd-Klodt Perspectives: Archivists and Archival Records . . . .Commission
. . . . Records.”
46
Opening the Mississippi State
by Menzi Sovereignty
by Sarah Rowe-Sims, Sandra Boyd, and H.T. Holmes by Sarah Rowe-Sims, Sandra Boyd,
and H.T. Holmes
Compiled with an Introduction

by Lisa A. Mix
Chicago
SAA SAMPLER ii
Society of American Archivists
www.archivists.org
© 2012 by the Society of American Archivists. All rights reserved.
ISBN 1-931666-44-X
SAA SAMPLER iii

Introduction to the
Law and Ethics Sampler
Lisa A. Mix
T his is the first installment in the SAA Sampler Series, which introduces
archivists to the best current thinking on pertinent professional topics.
In this volume you’ll discover three outstanding pieces on legal and ethical
issues for archivists—one overview of copyright and two case studies dealing
with privacy and access—drawn from three books published by the Society of
American Archivists: Navigating Legal Issues in Archives, The Ethical Archivist,
and Privacy and Confidentiality Perspectives: Archivists and Archival Records.
All archivists will face legal or ethical concerns throughout their careers.
In many cases we are caught unaware, and pressure is escalated by time
crunches or demanding patrons. The chapters from the three books repre-
sented here aim to equip archivists to handle these sorts of dilemmas as they
arise, by presenting practical information drawn from the real-life experiences
of archivists.
1) “Copyright and Related Rights Issues: Permissions, Releases, Music,

and Moral Rights.” Chapter 21 (pp. 249–264) in Navigating Legal
Issues in Archives by Menzi L. Behrnd-Klodt. Chicago: Society of
American Archivists, 2008.
Menzi L. Behrnd-Klodt, an attorney and archivist, presents a practical

guide to navigating the complex quagmire of the rights issues associated with
intellectual property. The chapter was written in 2008, and it is especially
timely now in light of recent cases, such as the 2010 case brought against the
Smithsonian’s National Museum of the American Indian that involved use
of copyrighted photographs from a donated collection.1 This chapter covers
matters—such as rights ownership, usage, and permissions—that would later
play out in that case and others.
The chapter will be useful to archivists who manage image collections or
digital collections, and to those who plan to present online digital surrogates
SAA SAMPLER 1
from their collections. Behrnd-Klodt also offers practical advice for assisting
researchers in securing permissions. Even though the onus for seeking and
gaining permission is ultimately upon researchers, reference archivists can
also spend a great deal of time and effort facilitating this process. And, as the
Smithsonian case referenced above illustrates, repositories can be subject to
legal action if a creator’s rights are not properly protected.
Behrnd-Klodt opens with a discussion of copyright and the permissions
process for text, images, and music. Extremely useful are the sample release
forms for using images, oral history, and quotations. She includes examples
showing different levels of permission, and clearly explains what these differ-
ences mean. The chapter ends with an excellent discussion of artists’ moral
rights, a topic not often covered in the archival literature.
This chapter will guide archivists in negotiating donations of image col-
lections and in facilitating the permissions process for researchers. Perhaps
more importantly, as many of us face pressure to “digitize it all and put it
online”, we need to be mindful of creators’ rights as we craft deeds of gift and
donor agreements. This chapter is a no-nonsense guide to navigating these
tricky waters.
Navigating Legal Issues in Archives, the book from which this chapter is
extracted, presents straightforward information for archivists on pertinent legal
topics, such as administration, access, privacy, copyright, and permissions.
Each chapter begins by posing two questions: Why is this topic important
to archivists? Who will find this chapter especially useful? Each question is
followed by bulleted lists of answers, so that readers may immediately gauge
its relevance to their particular situations.
Navigating Legal Issues is scrupulously documented, with copious endnotes
and numerous sources cited. Full of practical information about real-life situa-
tions, the book serves as a handbook that archivists will turn to again and again.
2) “Case Study: The Cigarette Papers.” Chapter 5 (pp. 165–180) in

The Ethical Archivist by Elena S. Danielson. Chicago: Society of
Elena S. Danielson, who holds a PhD from Stanford University and

worked for twenty-seven years in the Hoover Institution Archives at Stanford,
relates the fascinating story of the “cigarette papers,” a cache of documents
containing damning evidence against the tobacco industry that came to light
SAA SAMPLER 2
in the 1990s. The case study involves issues of authenticity, ownership, access,
privacy, and the public’s right to know.
Thousands of pages copied from proprietary documents were smuggled
out of a major tobacco company by a whistle-blowing employee and sent
anonymously to a researcher and anti-tobacco activist on the faculty of the
University of California, San Francisco (UCSF). The faculty member placed
the documents in the UCSF Archives, and that is where the story becomes
relevant for archivists.2
Danielson interviewed the archivists and librarians, as well as the faculty
member, involved in these events in preparing this case study that often reads
like a detective story. All parties describe how they faced such challenges as
ensuring equality of access, presenting materials in a neutral manner, main-
taining individual privacy, handling proprietary data, and preserving academ-
ic freedom, while pitted against one of the most powerful industries in the
nation.
The events related here placed the archivists and librarians in new roles to
which they were not accustomed, forcing them to operate beyond their com-
fort zones. As Danielson reminds us, the case was controversial within the
archives community at the time. The accounts of the staff members’ thinking
as they developed procedures and balanced conflicting interests makes fasci-
nating and enlightening reading for archivists today.
Danielson concludes her discussion with seven miniature hypothetical
case studies based on actual events, demonstrating the types of ethical
dilemmas that archivists might face. They present no right or wrong answers,
but rather seek to help archivists “develop coping skills” to better equip them
to handle such situations.
The Ethical Archivist covers a range of ethical issues that can arise in all
aspects of archival work, including acquisition, appraisal, access, and refer-
ence. Each chapter concludes with a set of discussion questions designed to
get archivists thinking about how to apply the concepts to their daily work,
and illustrating that there are often no clear answers.
The book includes an extensive bibliography and several helpful appen-
dices including codes of ethics, sample policies, and a select list of legislation
affecting access to private information. Archivists in many types of reposito-
ries will find it to be an indispensable reference work.
SAA SAMPLER 3
3) “Balancing Privacy and Access: Opening the Mississippi State
Sovereignty Commission Records,” by Sarah Rowe-Sims, Sandra
Boyd, and H. T. Holmes. Chapter 10 (pp. 159–174) in Privacy and
Confidentiality Perspectives: Archivists and Archival Records, Menzi
L. Behrnd-Klodt and Peter J. Wosh, editors. Chicago: Society of
Legal and ethical concerns converge in “Balancing Privacy and Access:

Opening the Mississippi State Sovereignty Commission Records,” by Sarah
Rowe-Sims, Sandra Boyd, and H. T. Holmes of the Mississippi Department
of Archives and History. This case study illustrates how archivists navigated
complex and challenging situations of balancing privacy and public access in
“managing one of the most infamous collections of privacy-sensitive govern-
ment records of twentieth-century America.” [p. 160]
The study opens with a brief historical sketch of the Mississippi Depart-
ment of Archives and History (MDAH), and its ethos of open access to public
records. This open access policy was tested by the complicated circumstances
of the records of the Mississippi State Sovereignty Commission, established
in the 1950s as a reaction to the Brown v. Board of Education decision in an
attempt to assert the state’s rights against a perceived overreaching of federal
authority. In effect, the commission functioned as a surveillance agency, gath-
ering intelligence on civil rights activists and “racial agitation”.
The authors present a clear account of the legal actions that resulted in
the initial closure, and subsequent mandatory opening, of the commission’s
records. Battles between privacy advocates and public access advocates ensued
for years. The case study describes the many challenges faced by the archivists
in carrying out the mission of the MDAH while dealing with conflicting reg-
ulations as well as strong opinions (and high emotions) on both sides of the
legal dispute. The narrative also discusses such practical issues as devising pro-
cedures for redacting information from and providing access to a voluminous
record group on very short notice. The story of how the archivists met these
challenges is illustrative and instructional not only for government archivists,
but for any archivist whose repository holds a controversial collection.
This article has been reprinted from the book Privacy and Confidentiality
Perspectives: Archivists and Archival Records, in which Menzi Behrnd-Klodt
and Peter J. Wosh assemble a wide-ranging collection of essays and case stud-
ies surrounding privacy issues in archives. The editors acknowledge the long-
running debate in the archival community on balancing privacy and access,
SAA SAMPLER 4
and strive to present a diversity of viewpoints. They state in the introduction
that “comprehensiveness has been sacrificed in the interest of stimulating
deeper reflection, provoking discussion, and offering archivists a variety of
ways in which to consider their current practices and methodologies.” [p.5]
The book is arranged in four sections: legal perspectives; ethical
perspectives; administrative perspectives; and institutional perspectives. The
Mississippi State Sovereignty Commission case study originally appeared in
the administrative perspectives section.
The chapters in Privacy and Confidentiality Perspectives involve a variety
of different types of repositories including government, university, religious,
and corporate, as well as diverse types of collections including personal, lit-
erary, medical, and public. The book contains extensive footnotes, and the
appendices home in on specific statutes affecting privacy, such as HIPAA and
FERPA. This text will be useful to a wide range of archivists.
* * *
The three essays here guide archivists through a gamut of challenges that
we could encounter in our work. Most repositories will deal with rights
management at some point in negotiations with donors. Balancing privacy
and access is a challenge that almost all of us face on a regular basis. And while
we all hope never to experience a baptism by fire such as those described in
the two case studies, collections that generate controversy are often those with
the highest research impact. Readers of this volume will benefit from the
experience and knowledge of the archivists involved in these chapters, thus
gaining insight into handling these types of situations in their own repositories.
Lisa A. Mix is the head of the Medical Center Archives at

New York-Presbyterian/Weill Cornell Medical Center and a member
the Publications Board of the Society of American Archivists.
Notes
1
The donor/photographer had not transferred copyright to the Smithsonian, and the user failed to obtain
permission from the copyright holder. The photographer sued both the user and the Smithsonian.
Peter Hirtle presents a summary of the case and its lessons for archivists at http://blog.librarylaw.com/
librarylaw/2012/02/update-on-a-legal-action-against-a-cultural-institution.html. Accessed June 9, 2012.
2
In the interest of full disclosure, I should mention that I was employed as the manager of Archives &
Special Collections at UCSF from 2002 through 2011, well after the events described in this chapter,
but I know several of the key players on the UCSF side in the case.
SAA SAMPLER 5
248 Navigating Legal Issues in Archives
SAA SAMPLER 248

21 COPYRIGHT AND RELATED
RIGHTS ISSUES:
Permissions, Releases,
Music, and Moral Rights
Why is this topic important to archivists?

• Archivists will be better able to understand and
assist researchers who seek information and advice
about using or publishing from unpublished archival
holdings and copyright-protected material other than
text, such as photographs, audio-visual content, music,
and art works.
• Related rights issues may complicate the efforts of
archivists, curators, and others who want to use or
exploit their own holdings.
Who will find this chapter especially useful?

• Archivists employed by publishers, museums, art
museums, and musical organizations, and related
businesses and organizations
• Archivists who manage photographic or digital
collections
• Reference archivists who advise researchers on
securing copyright permission
• Corporate archivists and records managers whose
collections include copyright licenses and permissions
and/or whose duties include maintaining corporate
records containing information about rights ownership
and licensing
SAA SAMPLER 249

7
Using Copyrighted Text, Images, and Music: The Permissions Process
Archivists may seldom need to secure copyright permission for their own
uses, but many of the researchers they assist will. Consequently, understanding
the typical copyright permissions process will help archivists better manage
archival records in which the archives holds copyrights and allow them to better
assist researchers who seek to reproduce or use text, images, and music.1
In considering using, reproducing, or reprinting material created by oth-
ers, the initial inquiry typically is whether the material is protected by copy-
right,2 triggering an investigation of the copyright status of the work.3 Public
domain works generally may be freely used. If a work is protected by copyright,
the user must determine whether the anticipated use is permissible fair use
under copyright law.4 Researchers may peruse copyright-protected material in
the archives, take notes, make single copies for study, and quote unspecified (but
not unlimited) amounts of protected content without infringement. When the
desired use exceeds the permitted fair use or becomes a commercial use, a wise
user seeks permission from the copyright owner.
Determining fair use in advance of a lawsuit is not always clear-cut or easy.
In contemplating whether to seek permission, the user’s publisher or copyright
attorney may be able to advise or the user may evaluate his or her tolerance
for risk and potential liability for copyright infringement. Requesting advance
written permission is a safe and conservative course of action, particularly if
the use will be substantial in terms of amount copied, quantities produced, and
visibility, or is commercial in nature, although it may involve royalty or use
payments. Securing permission seems simple, but may require perseverance,
investigation, time, and money. Permissions or licenses5 to use copyrighted
work can be obtained by the user directly or through one of many commercial
services such as the Copyright Clearance Center.6
In order to secure permission, the would-be user should accurately
identify the copyright owner. The copyright notice, name of the author and
publisher, and title of the work provide the basic information needed concerning
recently published works. When works incorporate protected material from
several sources, such as contributions to an anthology, recorded music, websites,
or multimedia recordings, or if the owner is not readily apparent, a search of the
U.S. Copyright Office records may help. For unique and unpublished letters,
diaries, or literary manuscripts, the archivist may be able to assist based on the
donor agreement and other internal records. If the user cannot identify or locate
the copyright owner after a good faith effort, the user’s next step is to weigh the
risks of using uncleared material. (The risks of copyright infringement may be
SAA SAMPLER 8
COPYRIGHT AND RELATED RIGHTS ISSUES: Permissions, Releases, Music, and Moral Rights 251
reduced to a level acceptable to the user if, for example, the use is noncommercial
and the amount used is diminished in scope or duration.)
Once the copyright owner is identified, it is necessary to determine what
rights are needed, for example, the right to quote exactly, make copies, or prepare
a derivative work. Securing rights for use in a published or performed work
typically includes not only the right to reproduce, edit, and modify material,
but also use in marketing, promoting, advertising, distributing, and selling
the new work. If electronic rights or formats are needed, the user should be
sure to secure express permission. The permissions grant should be in writing,
clearly specifying what rights are granted, whether the rights are exclusive or
nonexclusive,7 the scope of the permissible use(s), how long the permission
continues, whether fees or royalties are due, and restrictions on the use of the
material, and should be signed by the copyright owner.
Permission to Use Photographs; Releases
Obtaining permission to reproduce, publish, and distribute photographs

is similar to clearing written text for use, although it may involve clearing
several layers of rights and issues that transcend copyright law. The intended
use may affect whether rights must be cleared. Printing a photograph without
permission in a scholarly work may be fair use or a low risk endeavor while
using the same photo in a national television advertisement may not. If the
desired photograph is owned by a photographer/copyright owner, obtaining
permission in exchange for a usage fee may be simple. Many photographers opt
to retain their copyrights, particularly for national advertising, but they may be
willing to license their work directly to end users. If a photographer transfers
full copyright ownership to the archives together with the photo prints and
negatives, the archives then may exercise all of the exclusive rights of copyright,
and grant or deny permission to others to reproduce, exploit, or otherwise use
the photos, including licensing to third parties for such commercial uses as
posters, software, and merchandise.8
Obtaining permission from the copyright owner may be but the first step
in clearing photos for use. The user must be aware of the content of the photo. Use
of photographs of protected works of fine art may require permission from the
artist as well as the copyright owner (and occasionally, the art museum holding
the art may seek a credit and/or a fee for use of a digital image or transparency).
Photos incorporating an identifiable trademark may require permission of the
trademark owner for use or reproduction, especially in commerce. Reprinting
the likeness of identifiable individuals without permission may invade their
SAA SAMPLER 9
privacy. Celebrities not only zealously guard their images but may insist upon
payment of fees and the approval of use of their likenesses to maintain their
images and commercial viability. Clearly there are instances where even a legal
assessment that a use is fair use under copyright law will bump into a real life
need to secure additional permissions, often depending upon the nature of the
intended use.
Typically, either a photographer or one who employs the photographer
under a work made for hire agreement obtains a release from the photo subject
at the time of the photo shoot, but for the uses intended by the photographer
or employer. A researcher who subsequently wishes to use the same photo
(especially in a commercial use) should know what rights initially were released
or granted to whom, for what purposes, and for how long, and whether
those rights extend to permit the researcher’s use. A release of rights to the
photographer may be exclusive to the photographer or limited in subject or
time, and are not necessarily transferable to a different use. If not, the researcher
may need to secure permission from the photo subjects in order to make a new
or another use of the photo. If the photo is in the archives, the archivist may be
asked to help identify the copyright owner (e.g., the photographer or employer)
and to provide contact information to enable the researcher to determine
whether additional releases are required.
Some photos of identifiable persons and places may be used without vio-
lation of privacy rights. Those who attend public events are presumed by law
to have relinquished some of their privacy rights, as do celebrities, politicians,
and civic leaders who are public personalities. Photographs of individuals and
crowds in public settings, particularly those who have consented to be photo-
graphed, if the photographer was readily visible while shooting, if the scene lent
itself to photography, or if there was no reasonable expectation of privacy, may
not require a release of rights from each individual shown. Photographs used
for news reporting, journalism, or other factual use (as opposed to commercial
or for-profit use of the photo) also typically do not require a release. The facts
and circumstances of each instance will help determine whether releases are
needed.
Below are two examples of releases. The first is an example of a very
broad release of all rights to ensure that the copyright owner (the photographer)
owns all rights from the subject of a photo commissioned for specified uses.
When the copyright owner later donates the photographs to the archives, the
donor agreement should transfer the photographer’s copyright and to the extent
possible, all of the photographer’s rights under his or her releases with the photo
subjects, such as this one. Doing so will enable the archives to “stand in the
SAA SAMPLER 10
photographer’s shoes,” in terms of being able to use, grant permission to use,

enforce, and protect the copyright in the photos. The second release is one that
an outside researcher (or publisher) may use to secure the right to use, quote, or
publish various rights from the copyright owner, when the intended use exceeds
fair use or is a commercial use. Neither of these releases is provided with the
injunction that they must or need not be used; they are provided for information
only. Whether and when an archives, researcher, or publisher should use such
releases should be decided with legal counsel. (Note that capitalized words and
terms used in these examples are defined and assigned the meanings listed in
each release.)
In the first release below, note the breadth of the rights obtained through
the agreement’s language. Both the photograph itself and use of the likeness
are secured for the specified use (the “Book”) but also broadly to allow the
book to be advertised, promoted, displayed, and marketed. Even broader are
the rights to use the photograph and likeness: “as well as any future use” to
“advertise, promote, display and/or market” other products or services, as well
as for public relations purposes and use on websites, “in all media now known
or later developed” and in “all trade channels.” Clearly, this release sets the stage
for future commercial use and exploitation of the photographs and likenesses.
The subject of the photograph also agrees not to seek future compensation
for use of the photograph, and agrees to specific language ensuring that the
photographer is “the sole, exclusive, and perpetual owner” of the photograph
with all ownership rights, the right to create derivatives, control, display, use,
reproduce, modify, sell, license, or dispose of the photograph, or not use the
photograph, all without any right of approval by the subject. These are very
broad rights, indeed. Finally, the subject of the photograph agrees not to file any
claim against or seek any redress against the photographer or the photographer’s
business partners or employees, including, significantly, anyone acting on behalf
of the photographer, from the use of the photograph and the likeness of the
subject of the photograph, all of which further protects the photographer and
his or her actions.
The second release below illustrates a document that could be used in any
situation, and has been created in this example for a researcher to send to the
owner of copyright in materials housed in and donated to an archives, without
a transfer of copyright. In this example, the researcher has determined or has
been advised by her counsel that her proposed use of excerpts from copyright-
protected material housed in the archives exceeds fair use, and she has decided
to secure written permission from the copyright owner. The researcher has
contacted the copyright owner, communicated her intent, and negotiated the
SAA SAMPLER 11
permissions she needs; this document thus memorializes the agreement between
the parties. The archives is not a party to this agreement and may, in fact, never
know of its existence.
In this same example, note that in addition to the general statement
about the rights that the author wishes to secure, specifically: “various excerpts
and quotations from letters in the John Doe papers,” the researcher is careful to
clear all that she intends to use by attaching a copy of the actual excerpts and
quotations to be used. In addition, for the avoidance of any future doubt, the
researcher, Smith, has taken care to reserve her right to edit or modify the excerpts,
and to use them in formats other than the printed work. She has not, however,
secured broader rights to use the excerpts in any work other than the specified
book, perhaps because the copyright owner would have requested additional
compensation for such uses. Note, too, that both parties are identified as is their
authority to enter into and grant the rights recited in this release. The amount
of compensation is recited in the release, further modified by the statement
that the copyright owner shall receive nothing additional for the stated use of
the excerpts. This is to the benefit of the writer so that if the book becomes a
runaway bestseller, no royalties will be paid to the copyright owner. Depending
upon the type of work to be published and the amount and significance of the
excerpts, such determinations could be significant in the negotiation of rights
between copyright owner and writer. This release, too, includes “release and
hold harmless” language protecting the researcher/writer from any claim that
might be filed by the copyright owner, and by anyone else acting on behalf of
the copyright owner, arising from the writer’s use of the excerpts.
SAA SAMPLER 12
Rights License and Release – for Adult
[Name of Photographer] (the “Photographer”) creates, markets, uses, sells, and distributes
various photographs and images. In connection with [the Photographer’s project or work,
e.g., a book on women’s dress designs in the 1960s] (the “Book”), the Photographer desires
to photograph you and use your photograph and likeness. Therefore, by signing this docu-
ment below, you agree to the following exclusive grants to Photographer and its assigns.
You hereby expressly and irrevocably give consent to Photographer to photograph you and
grant the right to use your photograph and physical likeness, whether one or more photo-
graphs (the “Photograph”) in Photographer’s Book and in connection with any advertising,
promoting, displaying, and/or marketing of the Book, as well as any future use of the Pho-
tograph to advertise, promote, display and/or market Photographer’s products or services,
and for public relations purposes connected with the Book and the Photographer, includ-
ing without limitation use on Photographer’s website(s). The rights and release created
herein shall apply to all media now known or later developed and to all trade channels.
You agree not to seek from Photographer any further payment or consideration of any kind
with respect to the use of the Photograph by Photographer, or any other use of the license
rights granted by this license and release.
You acknowledge that Photographer is the sole, exclusive and perpetual owner of the Pho-
tograph which ownership entitles Photographer, among other things, to exclusive and per-
petual:
a. O
wnership of all duplicates or derivatives of any Photograph and any promotional
materials;
b. R
ight to control, display and use the Photograph and any performance rights embod-
ied therein in any medium, by any means, and for any purpose whatsoever; and
c. Right to reproduce, modify, distribute, manufacture, advertise, sell, lease, license or
otherwise use or dispose of such Photograph.
You hereby waive the opportunity and right to inspect or approve any reproductions of the
Photograph or any use to which they may be put. The Photographer has no obligation to
use the Photograph.
You hereby agree to release and hold harmless Photographer, its officers, directors, agents
and employees, and those acting under Photographer’s authority, against loss from any
claim, action or demand that may be brought at any time by you or by anyone acting on
your behalf for the purpose of enforcing a claim for damages on account of the use or non-
use of the Photograph or likeness, and from all claims and liabilities of any kind arising
out of or in connection with the use and reproduction or non-use of the Photograph or the
likeness referred to above.
By signing below, you certify and represent that you have read the foregoing and fully
understand the meaning and effect thereof. By signing this agreement, you intend to be
legally bound by it.
Dated this ___ day of , 2007.
Signature: Address:
Print Name: City, State, Zip:
SAA SAMPLER 13
Release of Rights
[Name of Researcher, e.g., Mary Smith] (“Smith”), presently a professor at the University
of Archivia, is [briefly characterize the nature of the researcher and/or research, e.g.,
“researching and preparing for publication by Publisher, Inc., a manuscript about the
American West”] (the “Book”). In connection with the Book, Prof. Smith wishes to use
various excerpts and quotations from letters in the John Doe Papers, whose copyright is
owned by Jane White (“White”), including use of the name “Jane White” (collectively,
the “Excerpts”), and which presently are housed at the University of Archivia Archives.
The Excerpts are attached as five (5) separate pages and made a part of this release.
Therefore, by signing this document below, White agrees to the following nonexclusive
grants to Smith and her assigns.
In exchange for a one-time payment of $500.00 to White by Smith, the receipt and
sufficiency of which is hereby acknowledged, White expressly gives consent to Smith
to use, edit, modify, reproduce, publish, transmit, and otherwise use the Excerpts in and
for the Book, including without limitation, use in electronic formats and websites, and
to advertise, promote, display, market, and sell the Book. The rights and release created
herein shall apply to all media now known or later developed.
White agrees not to seek from Smith any further payment or consideration of any kind
with respect to the use of the Excerpts, or any other use of the rights granted by this
release.
White acknowledges that Smith has the perpetual right to use, display, reproduce, modify,
distribute, advertise, license, or otherwise use the Excerpts in the Book in any medium
by any means and for any purpose whatsoever. White hereby waives the opportunity and
right to inspect or approve any reproductions of the Excerpts in the Book or any use to
which they may be put.
White hereby agrees to release and holds harmless Smith, her assigns, and anyone acting
under her authority, against loss from any claim, action or demand that may be brought
at any time by White or by anyone acting on White’s behalf for the purpose of enforcing
a claim for damages on account of the use of the Excerpts and from all claims and
liabilities of any kind arising out of or in connection with the use and reproduction of
the Excerpts referred to above.
By signing below, White certifies and represents that she has read the foregoing and
fully understands the meaning and effect thereof, and that by signing this agreement, she
intends to be legally bound by it.
Dated this ___ day of , 2007.
Signature: Address: ______________
Print Name: City, State, Zip: ______
SAA SAMPLER 14
Oral History, Videography, and Copyright; Releases of Rights
When researchers want to use, reproduce, or quote from oral or video

histories in writings, publications, and websites, similar rights issues arise. An
oral or video history interview conducted by or for or donated to an archives
contains contributions from both interviewer(s) and interviewee(s) and each
participant may own the copyright in his or her recorded words. Ideally, those
whose voices are heard on the oral history recording or whose images and
likenesses appear on any video recording, have signed a release9 or copyright
assignment transferring their copyright to the archives.
Following are two sample releases suitable for releasing and/or securing
rights. The first release grants and transfers all rights in an oral history recording,
including copyright, to the archives that records the interview (or to its parent,
whichever institution is authorized to accept gifts and donations). This release
secures broad rights for the archives or parent to use (or license) the recording
and accompanying documentation, easing administration as the archives or
parent need not go back to the interviewer for additional rights in the future. If
the archives or parent wishes to acquire more limited rights initially, this broad
language may be narrowed. If the interviewer is an employee of the archives or
its parent, his or her work product belongs to the employer, and the interviewer
need not sign a similar release of his or her rights. However, some state laws
do require a specific release of such rights (particularly if likenesses and images
are recorded), and if there is uncertainty about the interviewer’s employment
status, or if the interviewer is a freelancer, consultant, volunteer, or “friend” of
the archives, checking state law and, if needed, securing a release of rights from
the interviewer is a good idea.
The second release is an example of a document used to secure rights
to use a specific quotation from an existing recording in which the archives
or parent does not have all rights, and when use of excerpts is in excess of fair
use. In this example, the archives or parent or researcher secures permission to
use the quotation or excerpts for a variety of purposes. Listing or attaching the
actual quotation or excerpt at issue is optional, but it may be a useful addition
to ensure that there is no question later about which quotation or excerpt is the
subject of the release, and what the release actually granted or permitted.
In any release, it is important that the proper party, the archives or its
parent institution, execute the document, and that the desired rights are fully
secured. If the archives intends to publish or post a photograph of the interview
subject, it should avoid any invasion of privacy or related claim by acquiring
in writing the right to use the actual photo (as an object) and the likeness of the
interviewee (the right to depict the person’s image), as well as the right to use
the interviewee’s name.
SAA SAMPLER 15
Accession No. ______________
THE HISTORICAL SOCIETY

1235 Main Street, The City, ST 02367 Tel: (313) 444-4444 Fax: (313) 555-5555
ORAL HISTORY AUDIO-VISUAL RELEASE FORM

I, hereby give, grant, and
Name of Interviewee
assign forever, to The Historical Society, as a donation, all of my right, title,

and interest including copyright, in and to the recorded conversations made by
me and , as described below, and to any written
Name of Interviewer
summaries, transcripts, or copies thereof and any documentation accompanying

these recordings, for use by The Historical Society in any lawful way including,
without limitation, providing public access, quotation, and publication, except for
the conditions and restrictions specified below, if any:
The recorded material is further described as follows:

Number and Type of Recordings _____
Date(s) Recorded _____
Format(s) _____
Major Topics Discussed:
Signed Date _____

Interviewee
Address _____
Signed Date _____

Interviewer
THE FOREGOING MATERIAL IS ACCEPTED FOR THE

HISTORICAL SOCIETY
By Date _____
SAA SAMPLER 16
Release of Rights to Use Quotation
[Name of Archives or Parent Institution] (the “Archives”) [briefly characterize the

nature of the archives or parent here, e.g., “documents and disseminates records of
the American West”]. In connection with the Archives’ collecting project to edit and
publish a book about the Old West (the “Project”), the Archives recorded your oral
history and other recollections about the Old West on December 12, 2005 at your home
(the “Recording”) and now desires to use a quotation from your Recording together with
your name, profession, and brief identifying information (together referred to herein as
the “Quotation”). Therefore, by signing this document below, you agree to the following
exclusive grants to the Archives and its assigns.
The Quotation is: “My great-grandfather was a close personal friend of Billy the Kid and he
always told me that ‘The Kid’ was nothing like how he’s been portrayed by Hollywood.”
You hereby expressly give consent to the Archives to use, edit, reproduce, publish, transmit,
and otherwise use the Quotation together with your name, photograph, likeness, and
brief biographical sketch, in and for the Archives’ Project, including without limitation,
the Archives’ provision of public research access to the Quotation, use in its own
publications, exhibits, and website, and for other uses by the Archives and third parties,
including researchers. The quotation may be edited before publication or use. The rights
and release created herein shall apply to all media now known or later developed.
You agree not to seek from the Archives any payment or further consideration of any
kind with respect to the use of the Quotation, or any other use of the rights granted by
this release.
You acknowledge that the Archives is the sole, exclusive and perpetual owner of the
Quotation which ownership entitles the Archives, among other things, to exclusive and
perpetual rights to use, display, reproduce, modify, distribute, license, or otherwise use
the Quotation in any medium by any means and for any purpose whatsoever.
You hereby waive the opportunity and right to inspect or approve any reproductions of
the Quotation or any use to which it may be put.
You hereby agree to release and hold harmless the Archives, its officers, directors,
employees, volunteers, and those acting under its authority, against loss from any claim,
action or demand that may be brought at any time by you or by anyone acting on your
behalf for the purpose of enforcing a claim for damages on account of the use of the
Quotation and from all claims and liabilities of any kind arising out of or in connection
with the use and reproduction of the Quotation or the likeness referred to above.
By signing below, you certify and represent that you have read the foregoing and fully
understand the meaning and effect thereof, and that by signing this agreement, you
intend to be legally bound by it.
Dated this ___ day of ________, 2007.
Signature: Address: ______
Print Name: City, State, Zip: ______
SAA SAMPLER 17
Permission to Use Music
Those who own copyright in their music also hold the exclusive right to
perform, mechanically reproduce, synchronize (use in conjunction with video
or film), and print their music, and to control or prevent others from doing
so, including the exclusive right to authorize the first recording of the work.
Among the six major exceptions to the exclusive rights of copyright, Congress
created the compulsory license of music, so that once a song is recorded and
released to the public, copyright owners must license others to use the music in
exchange for payments set by Congress.10 Thereafter, anyone may record the
composition upon payment to the owners (typically, the music publishers) of a
“minimum statutory rate” (the “compulsory rate”) established under section 115
of the U.S. Copyright Act.11
Music publishers and musicians may control their rights themselves,
or more typically, register compositions with one of three performing rights
societies: the American Society of Composers, Authors, and Publishers
(ASCAP), a membership organization for writers and publishers; Broadcast
Music, Inc. (BMI), a broadcaster-owned corporation that serves writers and
publishers; or the Society of European Stage Authors & Composers, Inc.
(SESAC). These three organizations now control and license the performing
rights to nearly all of the world’s musical compositions, and anyone wishing
to reproduce sound recordings should begin by contacting these organizations.
In addition to performance and sound recording rights controlled by ASCAP,
BMI, and SESAC, mechanical reproduction licenses to use music in recordings
are available through the Harry Fox Agency, Inc. Synchronization licenses to
use music in advertising, movies, and television, to display or reprint lyrics,
or the right to print sheet music must be obtained directly from the music
publishers.12
Moral Rights or Droit Moral: The Artist’s Attribution and Integrity Rights
The European Concepts
Copyright protects the property rights of the author or creator of the

original work, while its related counterpart of moral rights or droit moral in
French and Urheberpersönlichkeitsreicht in German,13 ensures that authors, artists,
and other creators own and can control their personal rights of attribution and
integrity in their works. Moral rights were codified in the Berne Convention,
the major international copyright treaty, in 192814 and derive from European
intellectual property law concepts that authors and artists have inalienable,
SAA SAMPLER 18
non-economic personal and reputational rights in their works which warrant

protection. The concept of moral rights stands for the notion that creators, as
the sole owners of the work during the creative period, have the right to create,
modify, or dispose of their creations as they see fit, in order to assure respect for
themselves and their output:
Droit moral assumes that every work of art carries with it the distinctive imprint
of its creator; hence, the fate of the work and the reputation of the artist are
inextricably linked.15
Authors and artists may protect the integrity of their works and the use
of their names, and prevent distortion and misrepresentation of and interfer-
ence with their works under moral rights concepts. Only the creator may deter-
mine what modifications to the work will be allowed, and when, if ever, their
creation is ready for publication, sale, or presentation. Even after the work has
entered the public realm, its creator still retains certain rights to control its
future treatment. Among the specific moral rights which an author or artist
may exercise are:
(1) the right to permit or prevent disclosure or publication of a work

and to determine when and where any publication may occur
(2) the right to withdraw or retract a work after disclosure or
publication (including the author’s right to secure all remaining
copies of a work and prevent additional printings)
(3) the right to correct a work
(4) the right to prevent future modification (such as painting over
works of fine art, colorizing films, or removing public sculptures
from the public view)
(5) the right to reply to criticism
(6) the right of attribution16
(7) the right of integrity17
The right of attribution encompasses not only the right to claim authorship
of one’s work, but the ability to prevent misattribution, wrongful attribution,
and the omission of the author’s name from the work. The author also may
prevent another (such as a publisher) from crediting a work to him or her or
using his or her name as the author, in the event that the work is distorted,
mutilated, or modified in a way that would harm the author’s reputation. The
author also has the right to publish anonymously or pseudonymously and to
void any such promise later.
SAA SAMPLER 19
The right of integrity permits an author or artist to prevent alteration or

distortion of the work if the result would be harmful to the author’s or artist’s
reputation. The artist who fully exercises this right may limit editing, retouching,
colorizing, image cropping, color correction, or other modifications common
in publishing. Additionally, the author or artist may permit, prevent, or control
public exhibition or presentation of the work, as well as anything else that affects
the expression of his or her personality, artistic integrity, and honor.
Integration of Moral Rights Concepts into American Law
Development and integration of moral rights concepts into American

law has been slow and limited in comparison to European activity. Since the
U.S. adoption of the Berne Convention, however, awareness has grown and
many photographers, artists, and authors recognize their moral rights, while
many American publishers routinely seek a waiver of moral rights in contracts
with content creators. Publication and dissemination of works via electronic
media has increased the interest in balancing moral rights ownership between
content publishers and content creators.
The California Art Preservation Act (CAPA),18 enacted in 1979, was
among the earliest laws recognizing moral rights in original works of fine art,
including attribution and integrity rights. CAPA gave a living artist or the
artist’s estate for fifty years after the artist’s death a right to sue any person
“who intentionally defaces, mutilates, alters or destroys” a work of fine art of
“recognized quality,” including art conservators found to be “grossly negligent”
in their duties.19 The New York Artists Authorship Rights Act20 applied the
same concepts to fine art and limited editions of three hundred or fewer.
Visual Artists Rights Act of 1990 (VARA)21
Shortly after the ratification of the Berne Convention, the U.S. Congress
amended section 106(A) of the Copyright Act of 1976 to add the Visual Artists
Rights Act of 1990 (VARA), granting the first federal recognition of the rights
of attribution and integrity to authors of “work[s] of visual art.” VARA’s adop-
tion brought U.S. law into accord with the Berne Convention’s requirements,
while its explicit preemption of the “equivalent rights” of earlier state statutes
may bring the validity of those laws into question, at least as to works of art
created after VARA’s June 1, 1991 effective date or works protected by federal
copyright law. But some rights also may remain under state laws.22
VARA protects the artist’s or creator’s rights of attribution and integrity.
The artist may claim authorship of his or her work and prevent the use of his or
SAA SAMPLER 20
her name as the author of any work which he or she did not create or if the work
is distorted, mutilated, or modified in a way that would be prejudicial to his or
her honor or reputation. The artist also may prevent an “intentional distortion,
mutilation, or other modification of that work which would be prejudicial to his
or her honor or reputation,” and “destruction of a work of recognized stature,
and any intentional or grossly negligent destruction of that work.” 23 The act
does not protect against alteration, mutilation, or destruction resulting from
negligence, the passage of time or the inherent nature of materials, exhibition,24
or conservation.25 Only the individual artists and creators of a joint work of
visual art may exercise these rights, regardless of who actually owns copyright
in the work.26
Exercise of rights of attribution allows artists to ensure that their works
are properly and correctly attributed, including the use of correct and complete
captions and credits.27 The artist may insist that his or her name not be used
or associated with a work that the artist did not create or with a work that is
modified in a way objectionable to the artist. The rights of integrity allow an
artist to protect a work from destruction, unauthorized mutilation, or distortion
in a way that would harm the artist’s reputation during the artist’s lifetime.
VARA applies to “works of visual art,” narrowly defined in the law as
a (1) painting, (2) drawing, (3) print that exists “in a single copy, in a limited
edition of 200 copies or fewer that are signed and consecutively numbered by
the author,” (4) sculpture “in multiples cast, carved, or fabricated sculptures
of 200 or fewer that are consecutively numbered by the author and bear the
signature or other identifying mark of the author,” or (5) still photograph that
is “produced for exhibition purposes only, in a single copy signed by the author,
or in a limited edition of 200 copies or fewer that are signed and consecutively
numbered by the author.”28 Outside of the scope of VARA’s protection are all
literary and other visual works,29 including reproductions, posters, illustrations,
and widely printed or reproduced photographs; works created before VARA’s
June 1, 1991 effective date, and all works made for hire.
Moral rights in works of visual art created on or after June 1, 1991 con-
tinue for the life of the artist, as opposed to copyright protection which currently
lasts for the life of the artist plus seventy years. The heirs of a deceased artist
cannot claim a violation of the artist’s moral rights. State laws concerning moral
rights may apply to protect works created prior to that date, however, and the
termination provisions of section 106 of the Copyright Act will also apply.30
Moral rights may not be transferred under VARA but they may be waived
if the artist expressly does so in writing.31 A written waiver must specifically
identify the work and the uses of the work to which it applies.32 A waiver by one
SAA SAMPLER 21
author of a joint work will waive the moral rights of all other joint owners with-
out their consent.33 Rights conferred under VARA apply only to an original
work of art, not to any copies, nor does the law affect any copyright in the work.
A transfer of copyright is not sufficient to waive the artist’s moral rights, nor
does a waiver of moral rights transfer ownership of copyright or physical owner-
ship of a copy of the work.34 In short, physical ownership rights, copyright, and
moral rights are separate concepts and rights that operate independently, may
be transferred separately, and may be held by separate owners.
To date, the legal decisions concerning VARA involve large works of
visual art that could not be moved without injury or damage, works not of great
value created by artists who are not well known, and cases decided to protect
development rather than art works.35 Nonetheless, despite the limited effect of
moral rights in literary works in the United States, many American publishers
ask authors and illustrators to waive their moral rights to avoid later problems
that might affect production and marketing schedules. Debate continues,
however, about whether such waivers of inalienable rights are effective under
state and federal law and what the future of moral rights may mean in the
United States.
The Visual Artists’ Rights Act of 1990 does not recognize a moral right
in motion pictures. In the National Film Preservation Act of 1988 and 1992,36
Congress recognized the need for federal recognition of motion pictures as
a significant American art form and created the National Film Registry to
maintain and preserve films of cultural, historical, or aesthetic significance, as
noted by a seal provided by the Librarian of Congress.
Droit de Suite
Another European concept that has yet to be incorporated into U.S. law
is droit de suite, a type of property right that allows the artist to benefit from
the second and subsequent sales of his or her work. In 2004, the European
Parliament set a royalty rate for the second and subsequent sales of art works
of four percent of sale prices between $2,540 and $42,340, and a declining
scale thereafter.37 Droit de suite concepts were included in an early version of
VARA but were dropped from the bill as enacted. The U.S. Copyright Office
reported that insufficient “economic and copyright policy implications” existed
to establish this new right,38 and coupled with concerns about the effort required
to track sales of art works, Congress rejected this concept.
SAA SAMPLER 22
NOTES FOR PAGES 250–260 265
Chapter 21. COPYRIGHT AND RELATED RIGHTS ISSUES: Permissions, Releases, Music, and
Moral Rights
1 With the exception of federal agencies and archives, the archives or its parent likely holds copyright
to materials created by the parent (for example, a museum archives holding professional papers
of the museum’s scientists/employees) as well as to materials acquired by donation with copyright
transferred to the archives.
2 Copyright law and orphan works issues are discussed in chapter 20.
3 For more information, see “How to Investigate the Copyright Status of a Work,” Copyright
Information Circular 22, U.S. Copyright Office, revised December 2004, available at http://www.
copyright.gov. The Harry Ransom Humanities Center at the University of Texas at Austin and the
Reading University Library jointly compile a searchable online database of copyright contacts for
writers, artists, and their copyright holders (WATCH), available as of October 2005 at http://tyler.
hrc.utexas.edu. See also the discussion of copyright status and public domain issues in chapter 20.
4 Deciding whether or not to seek permission to copy or use copyright-protected material should be
left to the researcher. Nothing in this discussion is intended or should be construed as recommend-
ing that the reader or archivist should make such legal decisions for others or provide legal advice on
copyright or fair use. Users should consult an experienced copyright attorney for legal advice.
5 The terms permission and license are used somewhat interchangeably in this chapter, recognizing that
a permission is a form of license, often limited in scope or term.
6 Among the many sources of information about the permissions process are Richard Stim, Getting
Permission: How to License and Clear Copyrighted Materials Online and Off (Berkeley, Calif.: Nolo,
2000); and “Permission: What Is It and Why Do I Need It?” and “The Basics of Getting Permission”
at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview, available as of October 2005.
7 Users may find that nonexclusive rights to excerpt may be sufficient for use in most written work,
but exclusivity of use may become critical for commercial use of music, images, or merchandise
rights to prevent others from using the same material in the same way. Exclusivity typically requires
higher payments or royalties to offset the licensor’s inability to license the material to others for
profit, while nonexclusive licenses allow the copyright owner to earn fees through other licensing.
8 Depending upon its administrative or management rules, the archives legally may license the use
of any materials in which it owns copyright, but photographs typically are in greater commercial
demand.
9 A release is a voluntary relinquishment, giving up, or surrender to another of some right, interest, or
claim, either in actual property or in the ability to take or refrain from taking some action. As a form
of a legal agreement or contract, a release should be supported by an exchange of consideration,
that is, the party who relinquishes some interest or right typically does so to receive some benefit in
return, whether monetary payment or intangible in nature (such as seeing one’s name and interview
in print), and should be in writing signed by the interviewee or subject of the release. If a minor
child is recorded, her or his parent or legal guardian should sign the document. (See the section on
acquisition and ownership in chapter 4 for more information about contracts.)
10 The six exceptions to the exclusive rights under copyright law are: cable television compulsory
licenses require rebroadcast of signals in exchange for payment of set fees; public broadcasting;
jukeboxes; digital performance of record albums including webcasting; digital distribution of records
(requiring the licensing of downloading of record albums over the Internet, telephone lines, and
satellites); and phonorecords of nondramatic musical compositions. The latter are the subject of
compulsory mechanical licenses. The music copyright owner must issue a compulsory license only
if the song is a non-dramatic musical work previously recorded and publicly distributed, and if the
new use is only in a phonorecord and not a fundamental change to the melody or character of the
song. Compulsory licenses apply to digital downloads and formats. For more information see
Donald S. Passman, All You Need to Know About the Music Business, 6th ed., revised and updated
(New York: Free Press, 2006).
11 Congress periodically increases U.S. statutory compulsory royalty rates. As of January 1, 2006, the
royalty rate for the use of songs in physical phonorecords was 9.1¢ for a song of 5 minutes or less
and 1.75¢ per minute of playing time or fraction thereof for songs more than 5 minutes, whichever
is greater, per copy of each song reproduced and sold. Fees are paid to the copyright owner, music
publisher, or agent authorized by contract or statute to collect and distribute these fees. 37 CFR
SAA SAMPLER 23
266 NOTES FOR PAGES 260–263
§ 255.3. This rate applies to all songs reproduced in physical media such as cassettes, tapes, and
compact discs, and all digital phonorecord deliveries in the form of permanent downloads made
and distributed on or after January 1, 2006, regardless of the date when the license was issued or the
recording was first released. 37 CFR § 255.5; “Statutory Rate Increase January 1, 2006,” one-page
announcement issued by The Harry Fox Agency, Inc., November 28, 2005.
12 The complex business of music publishing, licensing, and permissions is described in Passman, All You
Need to Know About the Music Business; and by Peter M. Thall, What They’ll Never Tell You About the
Music Business: The Myths, the Secrets, the Lies (& a Few Truths) (New York: Watson-Guptill, 2002).
13 Translated literally as the “author’s right of personality.”
14 See William M. Landes, What Has the Visual Arts Rights Act of 1990 Accomplished? (Chicago: Uni-
versity of Chicago Law School, May 2001); John M. Olin Law & Economics Working Paper No.
123 (2nd Series), http://www.law.uchicago.edu/Lawecon/index.html.
15 Marie C. Malaro, A Legal Primer on Managing Museum Collections, 2nd ed. (Washington, D.C.:
Smithsonian Institution Press, 1998), 184, quoting from Ildiko Pogany DeAngelis, Assistant Gen-
eral Counsel of the Smithsonian Institution.
16 “Attribution rights are closely related to laws designed to prevent fraud and deception in the market.
Therefore, much of what attribution rights cover is already protected by existing laws” against
deceptive advertising and fraud. Landes, What Has the Visual Arts Rights Act of 1990 Accomplished? 6.
17 Contract law allows artists some ability to protect their integrity rights by incorporating limita-
tions and controls into sales agreements, although the informal nature of sales of art works and the
difficulty of enforcing such provisions can counteract this ability. Landes, What Has the Visual Arts
Rights Act of 1990 Accomplished? 7.
18 California Civil Code § 987, signed into law on August 1, 1979, with an effective date of 1980.
Connecticut, Louisiana, Maine, Massachusetts, Pennsylvania, New Jersey, New York, and Rhode
Island also enacted moral rights laws prior to the passage of VARA, protecting attribution and
integrity rights. For a comparison of the provisions of VARA and CAPA, see Brooke Oliver, “Walls
Come Tumblin’ Down: Balancing Muralists’ Intellectual Property With Building Owners’ Real
Property Rights,” 1999, Volume 5, No. 503, http://www.ibslaw.com, available as of November 2005.
19 Alan Thaler, “How California’s Art Preservation Act Affects Conservators,” WAAC Newsletter 3, no.
3 (September 1981): 2-3, available as of December 2005 at http://palimpsest.stanford.edu/waac/wn/
wn03.
20 New York Cultural Affairs Law, Section 14.03, 1983.
21 Visual Artists Rights Act of 1990, title VI of the Judicial Improvements Act of 1990, Pub. Law
101-650, 104 Stat. 5089, 5128, enacted December 1, 1990, codified in part in 17 U.S.C. § 106A,
et seq.
22 Section 301 of the Copyright Act preempts state or common law rights for works protected by
copyright. See Malaro, A Legal Primer on Managing Museum Collections, 184-197, especially note
342, page 185; and Landes, What Has the Visual Arts Rights Act of 1990 Accomplished? 2, citing
Lubner v. City of Los Angeles, 45 Cal. App. 4th 525 (1996). Lubner suggested that VARA preempted
the California law. In Pavia v. 1120 Ave. of Americas Assocs., 901 F. Supp. 620 (S.D.N.Y. 1995), the
court noted that the artist’s New York state law claim of ongoing mutilation of a work on display
was not preempted by VARA, since VARA does not protect display rights. Rights under VARA last
only during the artist’s life, so preemption ceases at the artist’s death, and state laws of defamation,
invasion of privacy, contracts, and unfair competition, which are not preempted by VARA, may per-
mit claims. See “Waiver of Moral Rights in Visual Artworks,” Library of Congress, U.S. Copyright
Office, 1996, available as of November 2005 at http://www.copyright.gove/reports/exsum.html.
23 17 U.S.C. § 106A(a)(1)-(3). The nature of harm to one’s “reputation” is similar to the injuries suf-
fered through defamation, which has been litigated and settled in the United States. The definition
of “honor,” has not. The meaning of “work of recognized stature” has been defined in court cases to
require only minimal recognition of the work.
The artist’s ability to prevent distortion, mutilation, or other modification of the work under
VARA is subject to the Copyright Act, 17 U.S.C. § 113(d), which limits the artist’s right to prevent
harm to a work of visual art that was incorporated in or made part of a building if removing the
work will cause the destruction, distortion, mutilation, or other modification of the work and if
the author consented to the installation of the work in the building either prior to June 1, 1991 or
signed an agreement with the owner of the building after that date which specifies that installation
of the work may subject the work to destruction, distortion, mutilation, or other modification, by
SAA SAMPLER 24
NOTES FOR PAGES 263–264 267
reason of its removal. See Landes, What Has the Visual Arts Rights Act of 1990 Accomplished? 5.
24 See Ibid., 3, citing Pavia v. 1120 Ave. of Americas Assocs., 901 F. Supp. 620 (S.D.N.Y. 1995), for the
proposition that an artist could not complain that “a dimly lit exhibition of his work or an inferior
quality reproduction of his work in a pamphlet or website violates his integrity or attribution right.”
25 17 U.S.C. § 106A(c). Modification of a work of visual art resulting from the passage of time, natural
deterioration, inherent nature of materials comprising the object or art work, conservation, and
public presentation (including lighting and placement) is not the type of destruction, distortion,
mutilation, or other modification that VARA restricts, unless such damage or alteration is caused by
gross negligence. Reproduction, depiction, portrayal, or other use of a work also is not unauthorized
destruction, distortion, mutilation, or modification.
26 17 U.S.C. § 106A(b).
27 VARA’s rights of attribution require that museum and exhibit labels on an original work of visual art
be accurate and proper.
28 17 U.S.C. § 106A.
29 Specifically excluded is “any poster, map, globe, chart, technical drawing, diagram, model, ap-
plied art, motion picture or other audio-visual work, book, magazine, newspaper, periodical, data
base, electronic information service, electronic publication, or similar publication,” as well as “any
merchandising item or advertising, promotional, descriptive, covering, or packaging material or
container,” and any work not subject to copyright protection. 17 U.S.C. § 106A.
30 17 U.S.C. § 106A(d).
31 17 U.S.C. § 106A(e).
32 An example of a broad, general VARA waiver for works of visual art is found in Malaro, A Legal
Primer on Managing Museum Collections, 197: “The Artist hereby acknowledges the rights of attribu-
tion and integrity conferred by Section 106A(a), paragraphs (2) and (3) of Title 17 of the U.S. Code,
and any other rights of the same nature granted by U.S. federal, state, or foreign laws, and of his/her
own free act hereby waives such rights with respect to the uses specified below by the [XYZ] Mu-
seum (or anyone duly authorized by the [XYZ] Museum) for the following work of visual art: Name
of work: Specified uses: [Examples: exhibition, installation, conservation, and any other
standard museum activities in which the attribution right and/or the integrity rights of the artist
might be implicated.]” Such a waiver should be created in duplicate and signed and dated by the
artist, and of course, a copy should be kept by the museum or archives and a copy given to the artist.
33 17 U.S.C. § 106A(e)(1).
34 17 U.S.C. § 106A(e).
35 In Pavia, the artist’s large bronze sculpture, to which the artist retained title and copyright, was
displayed in the Hilton Hotel from 1963 to 1988, when it was removed. Two pieces of the sculpture
were stored and two others displayed in a parking garage. The court found that the sculpture was
protected by VARA even though it was created before the law’s 1991 effective date, but because
the alleged mutilation also occurred before the effective date, the artist could not maintain a claim.
Pavia v. 1120 Ave. of Americas Assocs., 901 F. Supp. 620 (S.D.N.Y. 1995). In Carter v. Helmsley-
Spear, 71 F.3d 77 (2d Cir. 1996) the artists created a huge lobby sculpture from more than fifty tons
of recycled materials. The sculpture was never completed and the company managing the building
which would house the completed sculpture fell upon hard times and evicted the artists from the
premises. The artists sued, fearing that their work would be destroyed. The appellate court found
the sculpture to be work for hire not subject to the protections of VARA because the artists had
received weekly salaries for three years with taxes deducted, as did employees. In Shaw v. Rizzoli
International Publications, 51 U.S.P.Q.2d 1097 (S.D.N.Y. 1999), the artist claimed that rights under
VARA were infringed by the publisher’s books, but failed to allege intentional distortion, mutilation
or other modification of the works that would harm honor or reputation. The court found for the
publisher, because the claimed economic harm is not protected under VARA. In Martin v. City of
Indianapolis, 192 F.3d 608 (7th Cir. 1999), the artist’s large metal sculpture was placed on private
land under an agreement with the city of Indianapolis. The city later purchased the land and demol-
ished the sculpture without notice to the artist to move the sculpture, as required by the agreement.
The sculpture was found to be a work of “recognized stature,” but the city had not acted willfully; its
“bureaucratic failure” was not sufficient to grant enhanced damages under VARA.
36 Pub. Law 100-446 and Pub. Law 102-307, 2 U.S.C. §§ 1791-179v.
37 European governments have until 2008 to implement these rules, which for the following six years
will apply only to the works of living artists. Opponents of the ruling included many well-known
SAA SAMPLER 25
268 NOTES FOR PAGES 264
artists who felt the payment structure benefited only the famous at the expense of struggling artists.
38 Droit De Suite: The Artist’s Resale Royalty, A Report of the Register of Copyrights (Washington, D.C.:
Government Printing Office, 1992).
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164 the ethical archivist
The
Ethical
Archivist
Elena S. Danielson
c h a p t e r 5
Case Study:
The Cigarette Papers
I would not have continued the fight if I didn’t feel strongly about
freedom of information.
—Karen Butter1
This chapter analyzes a single case study, one that has been referred
to several times in this text because of its importance. The case is
primarily about open and equal access to once-privileged proprietary,
internal business archives. In addition, the study cuts across many other
fundamental ethical topics: respect for property rights, the acquisition
of stolen papers, the authentication of a gift without reliable provenance
background, third-party privacy in massive amounts of data, privileged
circulation and use records, attorney-client privilege, freedom of informa-
tion, and the right of citizens to be informed about important public health
issues that affect their welfare. The case diagnoses what happens when
different ethical imperatives come into conflict and how the professional
archivist negotiates these conflicting interests. It demonstrates the way
digital technology can be used to great strategic advantage in the process.
With its David and Goliath dynamics, it shows how librarians and archivists
evaluated risk in the face of a potentially long and expensive lawsuit.
The conflict between tightly restricted, proprietary records and the
public’s right to vital information exploded in the 1990s during the fiercely
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fought “tobacco wars.” The competing demands of private corporations

and public health advocates were no longer just abstract ethical dilem-
mas. Archivists were confronted with controversial issues from the entire
range of fundamental archival problems. It would be difficult to formulate
a hypothetical case study that more effectively demonstrates the values
at stake than the “cigarette papers,” as the case is known. The tobacco
wars were most fundamentally about two charged issues: serious health
hazards and access to records about them. Fortunately, a series of court
decisions around the country, as well as the Multistate Master Settlement
Agreement of 1998, delivered to the public massive amounts of research
and medical and corporate documentation.2 Several books and numerous
articles summarize and analyze these mountains of paper.3 The cigarette
papers case is emblematic of a host of existing conflicts between privileged
information in private business archives and the public interest. Archivists
will no doubt continue to find such documentation, often unexpectedly, in
the course of their work. Thinking through the issues in advance provides
a framework for making rational decisions under pressure.
Archivists played a crucial role in the tobacco controversy at a pivotal
moment in 1995. The management of access to documents was a key ele-
ment in the drama: who gets to see what, and how quickly? The archivists
involved were working in an impassioned environment as the press, con-
gressmen, judges, product liability lawyers, defense attorneys, and business
executives were vying for advantage in a war with numerous fronts around
the country and some billions of dollars at stake. All the players wanted
rapid access to information; some wanted exclusive access.
The following narrative provides an overview of the different factors
at play in this drama. It leads to a discussion of whether this case can be
used as a model, and, if so, under what circumstances.
In 1994, an anonymous whistleblower, who called himself Mr. Butts
after a well-known cartoon character, leaked thousands of copies of highly
confidential, internal documents from the Brown and Williamson Tobacco
Corporation (B&W), the third largest tobacco company in the United
States. Various sets of copies were circulated to the media, to Congress,
and to academics over the course of several months. The copies were
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cas e s tudy : the c igarette papers 167
passed around in a surreptitious manner due to fear of retaliation from

B&W—well-justified fear, as it turns out. Eventually, proprietary and
privileged information from the previously secret papers, some ostensibly
covered by the attorney-client privilege, rapidly became public in three
different arenas. On May 7, 1994, journalist Philip J. Hilts published an
article in the New York Times entitled “Tobacco Company Was Silent on
Hazards.” In June 1994, Congressman Henry Waxman opened congres-
sional hearings before the Subcommittee on Health and the Environment,
which subpoenaed documents and sworn testimony from B&W executives.
As to academia and archives, on May 12, 1994, a box containing about four
thousand pages of B&W internal records arrived at the office of Professor
Stanton A. Glantz at the University of California medical school in San
Francisco (UCSF), where he had been researching the health dangers of
smoking. This was apparently a larger set of papers than Hilts had acquired.
It is not clear exactly how the copies got from “Mr. Butts” to Professor
Glantz, or how many hands they passed through, but word was out.
Glantz had already heard about the papers. After looking through
them, he immediately determined that they were authentic, partly because
there were several chillingly accurate references to Glantz himself in them.
B&W soon confirmed the authenticity of the papers when they demanded
their return as stolen property. Upon reading the copies, Glantz recognized
trouble. In an interview fifteen years later he recalled thinking about the
implications: “This is litigation, and I’m not a litigation guy.”4 At the same
time, for a public health researcher interested in the medical effects of
tobacco, reading the papers was like “an archeologist finding King Tut’s
Tomb.” The data filled gaps in his research. Glantz analyzed the “smoking
gun” documents for a series of articles on tobacco industry research into the
health dangers of their products. While he did not advertise the existence
of the materials, word got around fast. A stream of people contacted him
about reading the cigarette papers. Glantz was concerned about the dual
task of preserving the hotly contested data and providing other researchers
with access in an orderly fashion.
In the summer of 1994 he placed the documents as an unrestricted
collection in the UCSF library where there was a new archival collecting
SAA SAMPLER30 30
focus relating to tobacco use and public health—an initiative called the
Tobacco Control Archives. Glantz already had a collection in the UCSF
archives. While it is normal procedure for faculty to preserve their research
sources in this manner, the transfer was not a simple transaction in this
case. Often sensitive materials are held back from the archives, but Glantz
had come to respect the librarians’ commitment to freedom of information
a decade earlier.
In the 1980s, Glantz acquired a pirated copy of an antitobacco film,
Death in the West. As a result of a tobacco company lawsuit, a court in
Britain had ordered the destruction of all copies and out-takes of the foot-
age. Glantz asked his legal counsel at the university how to protect this
rare surviving print. This occurred back in the era before copies could be
made easily from European audio-visual formats. The attorney suggested
placing the video in the library, where it would be both preserved and
made accessible. Legal counsel advised that courts are very reluctant to
remove materials from libraries. Such decisions could be seen to violate
First Amendment protections. “This was my first engagement,” said Glantz
in the same interview, “with libraries as subversive places.” By subversive,
he referred to a profession capable of doing “the right thing” in the face of
well-financed opposition.
Ten years later, in 1994, as researchers learned about the purloined
papers by word of mouth, Glantz was again faced with the same issues
he confronted with the pirated film: how both to preserve the materials
and provide access. The library and archives again seemed like the most
logical place to manage the documentation that arrived anonymously.
By then he had supplemented the leaked copies with additional materials
that were being released by the tobacco companies in an attempt to defend
themselves. When read together with the purloined papers, the voluminous
documents produced by the companies fit like jigsaw pieces into the larger
picture and were ultimately self-incriminating.
Karen Butter, the director of the UCSF library and archives, accepted
the transfer of the cigarette papers to the archives with the usual record
transfer forms, but she knew this would be an unusual case and under-
stood the scope of the problem immediately. “We knew we were in for
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31
a battle from the beginning, but I (and Robin Chandler as well) felt this
was the right thing to do.” 5 Her first step was to line up legal support, not
just for Glantz, who as a faculty member had a privileged position, but
also to protect the ordinary library and archives staff, who might be more
vulnerable in a legal battle. “We had many meetings with both the UCSF
and UC legal counsel in the process of accepting and making the gifts
available,” she explained. Butter, not a contentious person by nature, was
very familiar with the American Library Association’s work on freedom
of information, and knew the territory. She felt a strong obligation to
make the information available. If UCSF did not open this public health
information, she believed that it was unlikely anyone else would. At the
same time, she opened the collection in a neutral way, without unusual
publicity and without any official interpretation from the staff, whatever
their personal opinions might be.
The UCSF archivists quickly organized the papers and opened them for
public use—a completely normal procedure when donors do not impose
restrictions. Given the controversial subject matter, however, opening
these papers was a courageous act certain to draw a strong response from
B&W. It would inevitably embroil the library and its parent institution in
a battle with a powerful adversary—something that risk-averse archivists
tend not to do under normal circumstances. Glantz and the archivists were
taking on an enemy capable of aggressive tactics, including personal retali-
ation.6 Glantz acknowledges that he feared that the university attorneys
might make him “walk the plank”—withdrawing support for access to the
cigarette papers.7 But the University of California, with its long history of
defending academic freedom, was supportive of both Glantz’s research and
the unrestricted availability of his sources in the archives. The university
took a stand in favor of open and equal access.
B&W executives believed that the papers had been illegally pirated
and were essentially stolen property. Under ordinary circumstances, one
could easily understand this perspective. In their view, internal corporate
records covered by the attorney-client privilege and by trade secret pro-
tections had been unlawfully released. Predictably, B&W filed suit against
the university to demand the return of the documents. B&W also sent
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32
private investigators into the UCSF reading room to monitor and photo-
graph use of the collection. They demanded access to circulation records
to determine who actually used the papers. In the U.S., the American
Library Association and the Society of American Archivists have a long
tradition of protecting user information. Their advocacy of the free flow
of information has not extended to their own circulation records. For the
staffers, these intrusions must have been a serious test of their resolve. On
May 25, 1995, the California Superior Court for the City and County of
San Francisco denied the company’s request. B&W also failed in efforts
to block the release of documents by Congress and in several court cases
around the country. Various courts came to parallel conclusions in favor
of the freedom of information. The archivists could continue to provide
access to the cigarette papers.
And the demand for this information was huge, certainly beyond
the capacity of the UCSF archives reading room. A solution was on the
horizon. Scanners were becoming commercially available and the World
Wide Web became easily accessible with the emergence of user-friendly,
graphical browser technology. The UCSF staff immediately saw the util-
ity of digitizing the cigarette papers and took advantage of the new tool.
CDs were made, which helped ensure that the documents’ content could
not be “returned” to the company. At midnight of June 30–July 1, 1995,
within a few months of the favorable court decision, UCSF placed thou-
sands of scanned, indexed, and searchable documents on the Internet for
immediate use, free of charge. Glantz and his colleagues published a set of
related articles in a dedicated issue of the Journal of the American Medical
Association (JAMA), which also appeared in July 1995. Like the opening of
the archival collection, the publication by JAMA was considered by many to
be a courageous act at the time. Conveniently for the users, the documents
referenced by Glantz in the articles could be called up in their entirety on
the UCSF website for verification and independent interpretation.
Controversial political decisions are typically made in a charged atmo-
sphere at moments of mobilized public opinion, at a time when speed and
ease of access to information are vital. In such an environment information
that requires a cross-country trip is not “open” even if there is no formal
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33
restriction on use. In this case the website was accessed within minutes of
the release. During the first year it was available, researchers from forty-four
thousand different addresses viewed approximately half a million pages
of documents. The CD-ROM version of the documents was produced for
sale at $250. It sold well, despite the existence of the online version. There
must have been some concern that the online version might be dismantled
at some point, making a more permanent version desirable. At the same
time, the distribution of CD versions made moot any efforts at dismantling
the website. The site remained stable and growing. A new chapter in free
and equal access opened up.
Karen Butter had to contend with the consequences. This stand for
principles came with a price tag. “The legal challenge was very, very time
consuming—both in working with our legal counsel, responding to
requests from Brown and Williamson and in giving depositions. I would
not have continued the fight if I didn’t feel strongly about freedom of
information.”
As stated above, Glantz and his collaborators were attacked by the
tobacco industry; there were numerous attempts to undermine their
careers. They accepted the rough, personal nature of the fight and perse-
vered. Because of the controversy, they had difficulty attracting a commer-
cial book publisher to issue their findings; their book, The Cigarette Papers,
was published in 1996 by the University of California Press. Archivists
ensured that all the documents cited in the book, as well as the text itself,
were available online, initially by subscription and later completely open
and free of charge.8
The cigarette papers contained two levels of documents, one embedded
in the other. One level consisted of proprietary scientific research funded
and conducted by the cigarette industry into the role of tobacco and its
pharmacologically active ingredients. The second level of information
consisted of corporate strategies for concealing their own findings. What
did the contents of the papers reveal?
According to Glantz’s analysis, the documents reveal an expen-
sively funded campaign to disseminate a false interpretation of medical
data. Some would interpret this as a conspiracy to commit fraud. Glantz
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34
cataloged these discrepancies between internal research findings and pub-

lic corporate statements.9 In addition to concealing industry-sponsored
scientific research that documented the medical dangers of their product,
the company leaders formulated strategies for obfuscating similar reliable
evidence emerging from independent research and actively denying the
harmful effects of tobacco.
One especially grave allegation concerns the recruitment and subsidy
of respected medical experts to support the company’s public interpreta-
tion of medical evidence. Glantz provides a list of medical consultants,
some from prestigious institutions, and the funding they received from
B&W—totaling some twenty million dollars from 1972 to 1991.10 The
documents indicated that some of the funding was diverted through third-
party organizations to conceal the source. In essence, Glantz accused the
tobacco industry of corrupting the search for knowledge.
B&W paid particular attention to refuting evidence of the addictive
nature of nicotine in order to defend smoking as a voluntary choice and
shift any blame for adverse effects to the victim. For the same reason huge
resources were expended to refute the medical evidence that passively
inhaling “second hand” environmental smoke can cause fatal disease,
even though industry-funded scientists confirmed independent research
determining the effect.11
The papers themselves appear to show an awareness of the sensitivity
of these materials. Information was deliberately routed through law offices
apparently in an effort to protect them from discovery with the shield
of the attorney-client privilege.12 There were instructions for destroying
documents.13 There may have even been attempts to ship particularly
incriminating papers out of the country, beyond the reach of American legal
jurisdiction.14 As to the validity of Glantz’s interpretations, readers are free
to evaluate these conclusions by referring to the documents themselves.
Did open and equal access to the cigarette papers have an impact? The
documents were used, at least as background, in a series of product liability
suits and lawsuits by states to recover medical expenses to treat preventable
diseases caused by tobacco products. In his foreword to the 1996 volume of
Glantz’s book, C. Everett Koop, who served as surgeon general from 1981
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35
to 1989, states that the documents revealed a level of scientific information

that was not available to him at the time he was charged with protecting the
nation’s health. Based on these documents, he regretted not taking more
decisive actions: “I have often wondered how many people died as a result
of the fact that the medical and public health professions were misled by
the tobacco industry.”15
The tobacco wars reached the highest levels of government. In 1996,
under the Clinton administration, the evidence that nicotine was as addic-
tive as heroin was sufficiently strong to place cigarettes under the jurisdic-
tion of the Food and Drug Administration. In 2000 the Supreme Court
withdrew FDA control, only to have the issue revive during the Obama
administration in 2009. As the battles continue, the documents are in a
stable form, instantly available and searchable. The information has become
better understood and widely disseminated. It resulted in local ordinances
to restrict smoking in bars, restaurants, and offices. A grass roots movement
took shape, first in small communities such as Lodi, California, and then
spreading throughout the country. Gradually, smoking tobacco, which had
recently been considered socially acceptable and even stylishly attractive,
came to be considered offensive and unhealthy and was banned from public
spaces. The culture changed. If the papers had remained in Glantz’s San
Francisco office, results may have been different.
The UCSF archivists have taken the project to the next level, continuing
to add materials from a variety of sources as they become available. The
Legacy Tobacco Documents Library comprises some ten million docu-
ments for a total in the range of fifty million pages. In addition, there is a
growing library of videos, including television advertising over the decades.
It is quite easy to compare what the industry knew about the health hazards
at a given time with the presentation to the public during prime time.
The Legacy Tobacco Documents Library remains a heavily used resource
years later, and its impact is far reaching. In 2009 Kirsten Gillibrand was
appointed senator from New York to replace Hilary Clinton. It became
known that Gillibrand had worked as an attorney for the tobacco industry,
and a key word search using her former name, Kirsten Rutnik, revealed
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36
numerous references in memos that clarified the level of work she was
doing for the tobacco industry.16
By opening access, the UCSF archivists ensured that hard data has
been available during these national debates. Was it legal? In case after case
the courts consistently placed freedom of information about a dangerous
health hazard above legal technicalities. Important factors weighed in the
decisions included (1) the life-and-death nature of the information and
the primacy of the public welfare; (2) the availability of a digitized version
that constituted a publication protected by the First Amendment; (3)
the misuse of attorney-client privilege by the tobacco companies, which
drew particular ire from the judges; and (4) the finding that the original
documents were not stolen, only copies, so the corporation still had its
property.17 Basically the public’s right to know information about its health
trumped the corporation’s claim to proprietary information. Anything
less, according to one judge, would be an “inversion of values.”18 The
cover-up of medical research data was judged to be fraud perpetrated by
a conspiracy. The judicial branch made the release of the cigarette papers
legal, at least ex post facto.
Opening the cigarette papers, it is now established, was legal—but was
it ethical? After the announcement of online access to the papers in July
1995, the archivists’ Internet discussion group (Archives and Archivists
Listserv) buzzed with arguments and counterarguments.
The final chapter has not yet been written, but the basic issues can be
seen, at least in outline. On the negative side of the balance sheet are many
serious concerns that would normally prompt restrictions: Provenance is
the cornerstone of archival theory, and the provenance of the material was
murky at best when it was first made public. The document copies were
clearly pirated by a disgruntled internal employee. They were selectively
chosen by someone hostile to the company, exposing the collection to
accusations of selection bias. There was no attempt to balance the docu-
mentation with materials favorable to the tobacco industry, creating the
impression of political advocacy. The information opened by UCSF was
clearly proprietary and highly confidential even if it was recorded on cop-
ies. A well-known consequence of prematurely opening sensitive material
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37
is that the owners of such potentially controversial documents will take

preventive measures such as sanitizing and destroying archives rather
than chance exposure. No one denies that the attorney-client privilege
was violated. No one denies that the privacy of the named individuals was
violated. Copyright and trade secrets were also involved. The UCSF staff
is highly trained and very aware of all of these issues. They knew all along
that releasing such documentation was not to be done lightly. Factored into
their decision was a highly persuasive countervailing argument.
On the positive side of the balance sheet is the gravity of the subject.
The American public has a right to know, and in a timely fashion, as policy
is being formulated. Freedom of speech is a fundamental condition for a
successful democratic process. It is essential to emphasize that the role of
the archives is to open for free review information that is needed as the basis
of a national discussion. The archivists themselves presented the documents
in context but also in a neutral way, free of commentary, editorializing, or
advocacy. Even in articles reporting the history of the cigarette papers, the
staff remained professional and reported on the access process, leaving the
content to the readers to evaluate. This restraint is key to the credibility
of their work. It provides the ethical bedrock for access decisions. Access
was taken to a new level. The online availability of the papers resembles a
publication. Blocking access to the Internet site would be similar to prior
restraint in traditional paper publication.
The cigarette papers, now far more than the original set that arrived
anonymously in 1994, contain a great deal of data on individuals. UCSF
deals with privacy issues on a case-by-case basis. If, for instance, there
is a complaint that private data, such as social security numbers, appear
online, measures are taken to redact out the personal information as long
as it does not compromise the document’s integrity.
While the unique aspects of the case are groundbreaking and fascinat-
ing in themselves, it is important to remember the mundane details. As
innovative as the UCSF staffers were in dealing with the cigarette papers,
they adhered to certain basics of archival practice. To begin with, the papers
were precisely within the collecting scope and mission of the archives and its
parent institution. The research papers are directly related to the scientific
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38
mission of the medical school; the corporate records are useful for the
public university’s role in promoting good health as a public service. The
original deposit was donated by a UCSF faculty member, and collecting
faculty papers is a core assignment. Beyond adhering to institutional goals,
the staff exercised a high level of professionalism. They correctly appraised
the nature of the documents sent anonymously to Glantz. They correctly
determined that the content was authentic, even though the provenance
was not known until much later. The content was of great importance for
the public welfare even though the papers were fragmentary, disorganized,
and initially from just one individual company. The staff also appraised the
political context of the documents accurately: Congress and the press were
already discussing these materials; they had to be made widely available
as quickly as possible to support this discussion. The staff was prepared
to use newly emerging technical tools to facilitate the process. They firmly
believed that the benefits of open access outweighed the costs, but it took
strength of character to stay the course. The archivists created a highly
innovative access model within a traditional archival framework.
Should this case serve as a precedent and model in similar situations?
When egregious practices cross a certain line, the civility of formal ethical
standards need not and should not be misused to cover up malfeasance
and fraud. Situations arise where the benefit of open access overrides
considerations such as attorney-client privilege. Here is where the archival
profession needs to do some work with legal experts and ethicists to deter-
mine just where to draw the line. The cigarette papers case demonstrates
that there are circumstances where open and equal access is the prime
consideration. One participant in the Internet discussion group phrased
it this way: “archivists should avoid political advocacy as a profession, but
we cannot shun the responsibility to promote the public’s right to know.”19
The UCSF professionals made an ethical choice that required an awareness
of the larger social context of the documents in question and went beyond
routine procedures. The decision made a difference in public perception
of a social issue at a crucial moment.
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The UCSF archivists were able to defend the choice against formidable
opposition because of legal and logistical support from their parent insti-
tution. It would be naïve to ignore the fact that unswerving support from
the University of California legal department was absolutely essential to
success. Much as one would like to think that truth always prevails in the
end, and that good decisions are always recognized at least eventually,
effective ethical choices often also require substantial resources.
Are the tobacco companies the only industry that has systematically
covered up vital public health data? Probably not. Archivists and records
managers are likely to encounter similar controversial materials. Returning
to the central question: should the lessons from the cigarette papers provide
a model to evaluate the risks and benefits of freedom of information? In
most cases, companies have been able to assert their right to keep internal
records private. How grave does the danger have to be to justify opening
privileged documents? Usually whistleblowers do not succeed, and often
they suffer career setbacks. How certain must the manager be of all the
facts before making a decision to go public? How does one guard against
false either/or dilemmas? The choices usually fall along a broad spectrum.
Making ethical choices requires the ability to see both detail and the big
picture, with both a microscope and a telescope. It is not easy to remain
objective and find the threshold where the public interest outweighs the
company’s rights. Several factors came together to make the cigarette
papers a major case in support of the free flow of information. Courts
decide on very specific cases, and often with inconsistent results. In the
conflict between proprietary information and the rights of the public,
decisions are also made on a case-by-case basis, and the decisions are
heavily dependent on the exact details. Even so, it would help to have more
research and discussion on how to achieve a balance of proprietary and
public rights to information.
While better parameters would be welcome, in the end, an individual
makes a decision, and no textbook can dictate the correct answers. Asked
if she would do it again, Karen Butter was unequivocal: yes, of course. Even
knowing the consequences, she would do the same thing again.20
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Blowing the Whistle
The cigarette papers case began with an employee surreptitiously copy-

ing privileged documents from business records and leaking them to the
press and other outlets of public information. This case is highly unusual.
However, all types of archives have the potential for a collision between
the interests of the organization and greater social values. The scenarios
sketched below come from seven different types of private and government
archives: manuscript, state, foundation, national, corporate, religious, and
university archives. Should archivists “blow the whistle” if they are in these
situations, and more importantly, how should they cope with the conflict
of interests involved?
Attorneys familiar with whistleblower cases stress that successful out-
comes are extremely rare. However noble, most employees who accuse their
institutions of wrongdoing damage their own careers without remedying
the problem they identified. Individual employees facing an ethical quan-
dary have limited access to the full story, and in most cases they do not
know the full factual background of the circumstances that trouble them.
The lack of complete knowledge makes it easy to attack the credibility of
the accuser, no matter how just the cause. In such circumstances it is easy
to become emotional about perceived malfeasance or injustice, but that
emotion can cloud one’s judgment. Organizations are self-protective of
their reputations, and most do not tolerate employees who go to the press
with allegations. The legal protections for whistleblowers are an incomplete
patchwork of inadequate provisions and typically are not very effective.
Some films and fictional accounts have romanticized whistleblowing as a
brave and dashing thing to do. The reality is usually far from romantic.
For archivists, who have a position of trust and access to proprietary and
restricted information, revealing those secrets can be seen as a violation
of professional ethics.
On the other hand, a good citizen cannot ignore blatant wrongdoing.
Experienced attorneys advise taking the time to learn as many facts of
the case as possible in a calm and deliberate manner. They suggest going
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41
through channels in the organization if needed, speaking in confidence,

maintaining trust with colleagues, and exploring a variety of remedies. If
the situation becomes emotional, one’s objectivity can be compromised.
Once an employee becomes isolated and perceived as a troublemaker, the
career consequences are severe, even if the whistleblower tries to change
jobs. The sacrifice may be in vain. Revealing or protesting against an ethical
lapse is thus a very serious matter, not to be done on a whim. It is potentially
libelous and can have serious consequences. One should not encourage
anyone to serve as a whistleblower without a realistic assessment of the
situation. To take that step is a very personal decision, one that should be
discussed well in advance with family and with legal counsel.
Seven Scenarios
The following case studies, while generalized, are based on actual incidents,
typical of the profession, in various types of archival repositories. A code
of ethics is helpful, but in addition archivists need to develop coping skills
to navigate situations such as these. These cases are meant to provide food
for thought, not to provide answers or solutions.
1. Manuscript collection: A manuscript dealer has befriended

lonely elderly people, stayed in their homes, and walked
off with manuscripts to sell later to others, such as your
repository. Can you buy the papers? Do you have an obli-
gation to call the police? Is it theft? Elder abuse? Or none of
your business? What if the elderly are not concerned about
the missing papers?
2. State archives: You are processing financial records
and suspect that a secretary had embezzled funds from
the agency that transferred the papers to the state archives.
It happened four years ago. Are you obligated to report
your suspicions, and to whom? What if it happened ten
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42
years ago? Does the timing matter? Does the amount of

money involved matter?
3. Foundation archives: While processing personal papers
from a wealthy donor you find evidence of a large financial
contribution, tax deductible, to your repository, on the
condition that the money be used for acquiring archival
materials relating to China. The check was cashed years
ago, and no Chinese manuscripts have been purchased.
You bring this to your supervisor’s attention, and he is
unconcerned. Has your ethical obligation been fulfilled by
reporting through the chain of command? Do you go over
his head? Do you go to the press?
4. National archives: Your supervisor tells you to shred some
“duplicate” documents. You suspect they contain evidence
of improper use of power to fire a government employee
for partisan reasons. Is it best to shred without reading, so
it is not your problem? Do you refuse? Are you required to
report? What if you are not entirely sure what happened,
but are assuming it was improper?
5. Corporate archives: You are a business archivist transfer-
ring records that show your company deliberately with-
held product liability information from injured consum-
ers. What do you do?
6. Religious archives: Letters in the archives accuse priests of
improper and illegal behavior with minors. Do you have
an obligation to report to the police?
7. University archives: Your repository has received a large
collection without an inventory from an alumnus. In the
boxes you find envelopes containing a white powder.
What do you do? Just return them? Have them tested?
Report to your supervisor? Report to police?
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n o t e s f o r pa g e s 165–166 181
Chapter 5
1
Karen Butter, personal communication with the author, May 29, 2009.
2
From its inception, the Legacy Tobacco Documents Library at the University
of California medical school in San Francisco has collected documents that
“were made available through litigation brought by the National Association of
Attorneys General (NAAG) that resulted in the Master Settlement Agreement
(1998)”; see http://legacy.library.ucsf.edu/about/about_collections.jsp. The
UCSF website has a brief history of the collection: “The MSA settlement man-
dated that the tobacco companies release their internal company documents to
the public by depositing them into a repository in Minnesota as well as creat-
ing and maintaining websites containing searchable electronic versions of the
documents. The Legacy Tobacco Documents Library preserves and maintains
electronic versions of these released documents, making them widely available
to researchers and the general public”; see http://legacy.library.ucsf.edu/help/
faq.jsp. Other online sources, such as the depository in Minnesota and industry
websites, may eventually be closed. The LTDL website is considered the most
permanent location for the “tobacco papers”; see http://legacy.library.ucsf.edu/
about/about_data.jsp. While the initial box from an anonymous source had a
puzzling history, all documents and multimedia items that are added to LTDL
now have clearly traceable provenance. (All websites accessed June 7, 2009.) The
author is grateful to Polina Ilieva for assistance in navigating these websites.
3
Philip J. Hilts, “Tobacco Company Was Silent on Hazards,” New York Times,
May 7, 1994; Stanton A. Glantz, et al., “Looking Through a Keyhole at the
Tobacco Industry: The Brown and Williamson Documents,” Journal of the
American Medical Association 274, no. 3 (July 1995): 219–24, also related articles
in the same issue; Stanton A. Glantz, et al., The Cigarette Papers (Berkeley:
University of California Press, 1996), also available online at UCSF library
website; John Wiener, “The Cigarette Papers,” Nation, January 1, 1996, also
available at http://www.pbs.org/wgbh/pages/frontline/smoke/readings/wie-
nerarticle.html (accessed April 9, 2009); Karen Butter, Robin Chandler, and
John Kunze, “The Cigarette Papers: Issues in Publishing Materials in Multiple
Formats,” D-Lib Magazine, November 1996; Stanton A. Glantz and Edith D.
Balbach, Tobacco War: Inside the California Battles (Berkeley: University of
California Press, 2000); Robin L. Chandler and Susan Storch, “Lighting Up the
Internet: The Brown and Williamson Collection,” in Cox and Wallace, Archives
and the Public Good; A. Landman and Stanton A. Glantz, “Tobacco Industry
Efforts to Undermine Policy-Relevant Research,” American Journal of Public
Health 99, no. 1 (January 2009): 45–58.
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44
182 n o t e s f o r pa g e s 167–177
4
Personal communication. Unless otherwise noted, all quotes from Stanley A.
Glantz in author’s notes from an hour-long telephone interview conducted May
27, 2009.
5
Personal communication. All quotes from Karen Butter are taken from an email
to the author dated May 29, 2009.
6
For examples of efforts to damage the careers of Glantz and his co-workers see
Chandler and Storch, “Lighting Up the Internet,” 138. For more on retaliation
by the tobacco companies see Landman and Glantz, “Tobacco Industry Efforts
to Undermine Policy-Relevant Research.”
7
“Walk the plank” quote in Glantz interview with author, May 27, 2009. See also
discussion of university legal department support in Glantz, Cigarette Papers,
xix.
8
Chandler and Storch, “Lighting Up the Internet,” 147. See also Wiener, “The
Cigarette Papers,” 5.
9
Glantz, Cigarette Papers, 15–21.
10
11
Glantz, Cigarette Papers, 397, 415, 432.
12
Glantz, Cigarette Papers, 242.
13
14
15
Glantz, Cigarette Papers, xiv.
16
Raymond Hernandez and David Kocieniewski, “As New Lawyer, Senator Was
Active in Tobacco’s Defense,” New York Times, March 26, 2009, http://www.
nytimes.com/2009/03/27/nyregion/27gillibrand.html (accessed October 5,
2009).
17
18
19
Butter, Chandler, and Kunze, “The Cigarette Papers: Issues in Publishing
Materials in Multiple Formats,” 2.
20
Karen Butter, personal communication with the author, May 29, 2009.
SAA SAMPLER2945
45
SAA SAMPLER 2
10 Balancing Privacy and Access:
Opening the Mississippi State
Sovereignty Commission Records
Sarah Rowe-Sims, Sandra Boyd, and H. T. Holmes
I.
A popular government, without popular information, or the means
of acquiring it, is but a prologue to a farce or tragedy—or perhaps both.
Knowledge will forever govern ignorance, and a people who mean to be
their own Governors must arm themselves with the power knowledge gives.
James Madison1
Government archivists play a crucial role maintaining the health and vitality
of the nation. As James Madison identified in the quotation above, the cor-
nerstone of democracy is an informed citizenry with access to records of its
government. Archives remain central to the democratic process itself. The
archivist of the United States, John Carlin, defines the National Archives as
a public trust on which our democracy depends. It enables people to
inspect for themselves the record of what government has done. It
enables officials and agencies to review their actions and helps citizens
hold them accountable. It ensures continuing access to essential
evidence that documents the rights of American citizens; the actions of
federal officials; the national experience.2
Such a lofty statement is not mere hyperbole, massaging the limp ego of a
low-status profession. Carlin recognizes the archivist as an essential com-
ponent in government infrastructure and the national consciousness.
This article appears courtesy of the Mississippi Department of Archives and History.
159
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160 Privacy & Confidentiality Perspectives
With this duty comes an ominous responsibility, which plunges the archivist
into the murky waters of privacy and access rights. This study examines how
one state archives rose to the challenge, managing one of the most infa-
mous collections of privacy-sensitive government records of twentieth-cen-
tury America: The Mississippi State Sovereignty Commission Records.
II.
The History and Legal Mandate of the Mississippi Department of
Archives and History (MDAH)
MDAH has a long tradition of protecting Mississippi’s finite cultural
resources. Founded in 1902 as a state agency, it is the second-oldest state
archives in the nation.3 The creating legislation did not impose official
restrictions on access to the records in MDAH’s custody. Dunbar Row-
land, the agency’s first director, was clearly “more interested in providing
access than in restricting any materials.”4 In an address to the American
Historical Association in 1910, Rowland identified as the “greatest draw-
back to investigation . . . the inaccessibility of public archives due to
unnecessary restrictions.” 5 In early MDAH annual reports, Rowland
affirmed the agency’s “liberal” access policy, stating that “[t]he freest
access to documents is allowed to every properly accredited student
engaged in serious work.”6
The Archives and Records Management Act of 1981 and the Mississippi
Public Records Act of 1983 defined MDAH’s responsibilities more clearly.
The 1981 law charged MDAH with the duty to maintain a “program in
cooperation with each agency for the selection and preservation of vital
records considered essential to the operation of government and to the
protection of the rights and privileges of citizens. . . .”7 Government
records were defined as public property and opened to inspection, with
the exception of those specifically exempted by state law, court order, con-
tractual agreement or “. . . those records which it is shown the public
interest is best served by not disclosing to the public.” In addition, the act
stated the MDAH would make records available “. . . at a reasonable time
and place under rules and regulations adopted by the Board of Trustees.”8
The 1983 Public Records Act and its subsequent amendments legally
reaffirmed access to government records in Mississippi. The statute
declared public records to be open and accessible, except for those
records exempted by specific legislation. It further stipulated that nonex-
empt records contained within exempt records be separated and made
available by agencies. In 1996, the act was amended to encompass the
new demands of electronic media. This amendment required agencies
to ensure access to electronic records, exempting software that was pro-
SAA SAMPLER 48
Balancing Privacy and Access 161
prietary in nature, that was obtained under a licensing agreement, or

that was considered “sensitive.”9 It also guarded against proprietary elec-
tronic records systems, stressing that agencies must plan for public
access in their management of electronic records. The amendment
authorized MDAH to assure access, stating that reproduction and stor-
age of records of “enduring value” had to meet archival standards.10
III.
The “NKVD among the cotton patches”11
In a state whose image has largely been defined by racism, the Missis-
sippi State Sovereignty Commission stands as an especially sinister insti-
tution. From 1956 to 1977, this state agency collected information on
civil rights activists, acted as a clearinghouse for information on civil
rights activities and legislation around the nation, funneled money to
prosegregation organizations, and disseminated right-wing propaganda.
Ironically, although its loudest proponents championed themselves as
part of a Christian crusade against the insidious “red menace” of com-
munism, the commission more closely resembled Big Brother.
The commission was established in the wake of the 1954 United States
Supreme Court decision, Brown v. Board of Education,12 which rejected as
unconstitutional the notion of segregated “separate but equal” schools.
Like other states below the Mason-Dixon Line, Mississippi passed a slew
of legislation to shore up the walls of racial separation. Shrouded in the
rhetoric of states’ rights, the act creating the commission provided the
agency with broad powers to spearhead the state’s response to Brown.
The commission’s objective was to “do and perform any and all acts and
things deemed necessary and proper to protect the sovereignty of the
state of Mississippi, and her sister states” from a perceived encroachment
by the federal government.13 The governor served as ex-officio chairman
and state legislators composed its membership. The agency staff
remained small, consisting of several gubernatorial appointees, a direc-
tor, a public relations director, and a handful of investigators.
As a result of its broadly defined statutory mandate, the commission
performed a myriad of duties. Activities loosely comprised three basic
functions: investigative, public relations, and advisory. The focus of each
varied according to the whim of the governor and the particular skills of
his appointees. Perhaps the most infamous function involved investiga-
tion. The commission likened itself to the FBI and the armed services
intelligence agencies “during times of war seeking out intelligence infor-
mation about the enemy and what the enemy proposes to do.”14 Routine
work for investigators consisted of traveling around the state compiling
SAA SAMPLER 49
reports on civil rights activities in each county. In addition to its investiga-

tors, the commission also used paid informants and private detectives.15
Actual evidence of “racial agitation” was not necessary to attract the
commission’s attention. The rumor mill and race baiters fed the commis-
sion, and any person or organization that appeared to transgress the racial
lines or espouse a vaguely liberal perspective was a likely target. Following
the passage of the Civil Rights Act of 1964,16 the Voting Rights Act of 1965,17
and other civil rights legislation, the tone of the reports changed. Reports
began to use the term “subversive” rather than “agitator.” The director
asserted that the commission was “not a super snooping agency trying to
crack down on any Negro who raises his hand.”18 Investigators were
instructed to purge information demonstrating that the commission assisted
in preventing voter registration. In reality, the commission continued to ful-
fill its usual functions, although investigations in the late 1960s began to
focus on college campuses and “counter-culture” activities in general.19
The commission advised state and local government officials, law
enforcement personnel and members of the public. To discourage voter
registration, the commission routinely advised local governments to fire
any employee who attempted to register. Prior to the 1964 Freedom Sum-
mer, it conducted “Clinics” to instruct local law enforcement in how to han-
dle the expected “invasion.” With the passage of federal civil rights legisla-
tion, the commission focused on ways to circumvent the new regulations.20
Officially, Mississippi sought to present the face of racial harmony to the
rest of the world. The commission worked in secret to prevent news of
racial violence and intimidation from reaching the press. Its public rela-
tions director wrote editorials for local newspapers that debunked national
media reports. The agency acted as a clearinghouse for civil rights informa-
tion, and its Speaker’s Bureau provided advocates who toured the nation
presenting Mississippi’s official perspective. The commission facilitated
right-wing propaganda activities by funneling state money to such groups
as the Citizens’ Council and the Washington, D.C.–based Coordinating
Committee for Fundamental American Freedoms.21 The commission also
donated small amounts of money to African-American individuals and
organizations sympathetic to segregation, hoping to attract those they
termed the “thinking Negroes of Mississippi.”22
By the 1970s in Mississippi, support of an openly racist, state-
sanctioned commission no longer appeared politically expedient. In
April of 1973, Governor William Waller vetoed the Sovereignty Commis-
sion’s appropriation and described the agency as “a stigma on the state’s
government.”23 Even before the ink dried on Waller’s veto, public specu-
lation began over the files of the defunct commission. On the first day of
the 1977 legislative session, H.B. 276 was introduced to transfer the files
SAA SAMPLER 50
and equipment of the commission to the Department of Public Safety.24

A heated debate ensued in the legislature, as lawmakers introduced
other bills designed to dispose of the records in various ways. African-
American legislators called for the files to be opened, some legislators
argued for a lengthy closure, while others voted for the records literally
to be burned.25
The vote to destroy the files prompted a firm response from MDAH.
The MDAH board of trustees unanimously passed a resolution at its 28 Jan-
uary 1977 meeting “strongly imploring the legislature” not to destroy the
records. The board voted to “immediately advise the appropriate members
of the Legislature” of its opposition to the “indiscriminate destruction of
the records of the State Sovereignty Commission or any state records.”
MDAH also stated that it would willingly take the records “in accordance
with any restrictions the Legislature [chose] to place on them.”26
Preservation advocates aired their views at the 18 February 1977
House of Representatives Judiciary “B” Committee hearing. The chair of
the MDAH board of trustees, former governor William Winter, argued
that “there is too much historical value in these records to destroy them
without giving historians some way to interpret this era of our history.”
Winter further asserted that destroying the records seemed “inconsistent
with the way we do things and smacks of totalitarianism.”27 MDAH direc-
tor Elbert Hilliard identified precedents for dealing with records of this
nature, citing the National Archives’ handling of the records of the
United States House Un-American Activities Committee. Hilliard also
assured the committee that MDAH had “room to seal and store the
records.”28 The result was the enactment on 3 March 1977 of an
amended bill to abolish the commission but to seal its records at the
archives until 2027.29 The secretary of state’s office immediately trans-
ferred nearly 133,000 pages of surviving commission records to MDAH,
where they were secured in its vault.30 Because the records were statuto-
rily sealed when the law was enacted, MDAH archivists did not have the
opportunity to assess their physical condition or even confirm the con-
tents of the filing cabinets.31
IV.
[W]e feel that it would be the bitterest irony to subject
the many people whose files are so gathered to a cavalier and
uninhibited media spectacular.32
In January 1977, even as the Mississippi House debated the agency’s

fate, the American Civil Liberties Union/Mississippi (ACLU/M) initi-
ated an intense legal battle in the federal courts to open what it dubbed
SAA SAMPLER 51
Mississippi’s “spy files.” As the case of American Civil Liberties Union of Mis-
sissippi, Inc., et al. v. Cliff Finch Govenor of State of Mississippi, et al.33 wound
its tortuous route through the courts, the central element emerged as a
debate between access and privacy protection. For seven and a half years
after the lawsuit was filed, various court skirmishes occurred. At one
point, the suit was dismissed by the federal district court, only to be rein-
stated by the Fifth Circuit Court of Appeals. During this initial period,
the debate centered on the question of whether the records should
remain open or closed. Curiously, the arguments and decisions occurred
before any commission records were available for discovery. Both sides
argued over records that no one had evaluated.
In October 1984, the plaintiffs were finally granted access to the files
for discovery.34 Once the plaintiffs actually read the records, an internal
schism developed. As a result, in December 1987, U.S. District Court
Judge William H. Barbour, Jr. divided the plaintiff class into two sub-
classes: access plaintiffs and privacy plaintiffs. Access plaintiffs sought
“unlimited public access” to the records, while privacy plaintiffs con-
sisted of those who supported “access to the records for those named in
the records, but who further advocate no further access by other parties
without the prior consent of each person or persons described in a par-
ticular record.”35
One of the original plaintiffs, freelance journalist Ken Lawrence of
Jackson, who favored full disclosure, summarized the access perspective:
“[T]here’s nothing that anyone would want to keep secret.” He contin-
ued, “[T]he need we have to understand the outrageous behavior of the
state so much overrides the technical claim of privacy that it doesn’t make
any sense.”36 In contrast, former Tougaloo College professor John Salter,
one of the original plaintiffs, who now favored privacy, noted, “[W]e feel
that it would be the bitterest irony to subject the many people whose files
are so gathered to a cavalier and uninhibited media spectacular.”37
On 27 July 1989, the court declared the 1977 act sealing the records
unconstitutional and ordered the files to be treated like “any other pub-
lic record according to state and federal law.” The judge also stipulated
that any class member could “file with the custodian of the Sovereignty
Commission files any rebuttal to any allegation, charges or other infor-
mation about the class member contained in such files.”38 In the ruling,
the court strongly defended the importance of disclosure:
To open the files would further the general principle of informed
discussion of the actions of government, while to leave the files closed
would perpetuate the attempt of the state to escape accountability.
SAA SAMPLER 52
Opening the files would also end public speculation as to the extent of the
acts of the Commission, much of which has far exceeded the record.39
The ACLU/M applauded Judge Barbour’s ruling, and the state governor
and attorney general chose not to challenge the decision.40
On the day that the ruling was handed down, MDAH representatives
met with the state attorney general to discuss opening the files. After
twelve years of litigation, it was evident that the access plaintiffs would
allow MDAH little time to prepare. During the discovery process, MDAH
archivists assessed both the physical condition of the papers and their
processing needs. Faced with an imminent opening, immediate and
drastic plans had to be developed for providing access within a matter of
a few days. The privacy advocates, however, moved to prevent the open-
ing of the files, and the ruling that opened the files was immediately
stayed, pending an appeal to the Fifth Circuit Court of Appeals.41
The potential impact of the court’s ruling that opened the records
moved the MDAH board of trustees into action. Since the passage of the
closure act, and during the previous twelve years of litigation, MDAH
had been asked neither to comment on the issue and/or process nor to
provide testimony regarding any archival issues. The near-reality of hav-
ing to open the records in a very short time served to focus the vision of
the department.
The privacy plaintiffs began talking with MDAH staff about how to
provide access to the records with personal identifying information
redacted. Armed with this information, the privacy plaintiffs worked with
some of the access plaintiffs to develop a compromise settlement, which
was given to MDAH for comment.
The proposed settlement would have required the MDAH to
Open all Commission records to the public after the records had
undergone privacy screening; except that records involving certain
classes of persons would be opened without screening:
deceased persons;
all public officials of local, state and federal government at the time
each record was created;
all paid informers;
all verified providers of information to the Commission, excepting
those persons who provided information on white supremacist groups.
Notify all class members of their rights, including, but not limited to:
publication in Mississippi and national newspapers;
mailing to last known address;
written notification to all relevant organizations.
SAA SAMPLER 53
The proposed settlement defined “class members” as any individuals who

thought their civil rights may have been violated by the commission.42
After reviewing the proposed settlement and carefully considering the
situation, the MDAH board of trustees strongly endorsed privacy screen-
ing and offered a counter proposal that would require the archives to
Make all Commission records open to the public after the records had
undergone privacy screening; except that records involving certain
classes of persons would be opened without screening:
deceased persons, provided however that the Department would
screen for privacy of family members of deceased persons;
members of the Commission and public employees of the
Commission;
All records would be declared open, public records in 2027
Notify class through publication in state and national newspapers
Provide a means for a class member to provide written rebuttal to any
records pertaining to him.
To accomplish the privacy screening, the archives proposed converting

the records into electronic form and using electronic editing capabilities
for rapid privacy screening.43
The possibility of such a settlement failed due to the plaintiffs’ inabil-
ity to agree on a final plan. But the MDAH board had identified its
responsibility to the matter as it then stood, taken a strong stand on the
need for privacy protection, and realized that its opinion needed to be
heard by the appeals court. Because the state attorney general had
declined to enter an appeal on the district court’s ruling, the MDAH
board’s position would not be heard in court. As required by state law,
the board requested the attorney general’s permission to hire private
counsel to represent the department as a privacy advocate.44 Three
months later, that request was denied.45
On 14 September 1990, the Fifth Circuit held that Judge Barbour’s
ruling “did not adequately take into consideration privacy interest [sic]
of persons named in agency files” and directed the district court to
“devise a plan” to accommodate privacy interests.46 In September 1993,
Judge Barbour held an evidentiary hearing to explore the privacy and
access issues. Litigants, including representatives from MDAH, outlined
their recommendations for opening the files.47
Prior to this point, the archives’ role in the case had been solely that
of legal custodian of the records. Although MDAH had proven instru-
mental in saving the records from the funeral pyre, as a state agency it
was a defendant in the ACLU litigation. MDAH had never been
requested to testify. The hearings now afforded archivists their first
SAA SAMPLER 54
opportunity to outline archival concerns to the court. In formulating its

plan, MDAH tempered archival requirements with the court’s immedi-
ate needs and the strictures of time. MDAH adamantly insisted, however,
that the physical and intellectual integrity of the files should be pre-
served. Rejecting microfilming and photocopying options as economi-
cally unfeasible for the long term, MDAH advocated imaging in order to
leave the originals untouched and provide an exact, authentic electronic
copy coupled with an index. This electronic copy could meet both the
court’s privacy stipulations by allowing archivists to work on a single
“copy” of the document and the access needs of researchers by allowing
them to see that same “copy.” To further ensure authenticity, MDAH
rejected optical character recognition (OCR) technology due to the
potential for data manipulation. In addition, the poor quality of the orig-
inals and inclusion of much handwritten material made the job beyond
the capabilities of the OCR technology available at that time. The
involvement of archivists in the trial, presenting archival procedures and
concerns, was noticed by the court.
On 31 May 1994, Judge Barbour released a memorandum and opin-
ion order, which declared the records open and established a privacy
and disclosure procedure. Now sympathetic to archival concerns,
Judge Barbour’s goal was to maintain “the original integrity of the files,
while balancing the competing interests of the various plaintiffs in pri-
vacy and disclosure.” He also stressed, however, that “no system of dis-
closure will be perfect.”48 MDAH was given the task of implementing
the process within a set time frame. The archival process to be used in
complying with the court’s order was not mandated, but the following
steps in the process were stipulated:
Compilation by MDAH of an index of all personal names appearing in
the records
Classification by MDAH of each name as either a “victim” of Commission
surveillance or a complicit “state actor”
Notification by MDAH to class members that records were available for
review
Response by class members
Redaction by MDAH
Opening of redacted records49
Although Judge Barbour set a deadline for the completion of this
process, he expected that appeals would delay implementation. MDAH
was instructed to proceed with the compilation of the index while
awaiting the determination of the final redactions that would be made.
The privacy plaintiffs appealed the 1994 order, which was upheld by
SAA SAMPLER 55
the Fifth Circuit Court of Appeals. The United States Supreme Court
refused to consider the matter. In November 1996, with all avenues of
appeal exhausted, the timetable outlined by Judge Barbour’s 1994
court order finally went into effect.50
Advertisement Period 45 days

Inquiries from interested individuals 90 days
MDAH response to inquiries with copies of records 90 days
Inquirer response to privacy options (“inquiry stage”) 30 days
Final preparation prior to public opening 30 days
The appeals afforded MDAH valuable extra time to complete the

laborious and tricky task of imaging and indexing the records. At the
time that MDAH was ordered to index the records, the agency had no
prior experience in dealing with privacy issues of this magnitude. When
MDAH became responsible for redacting records to protect personal
privacy interests, a total re-engineering of attitude was required.
The resulting changes were most apparent in, and had the most
immediate impact on, the indexing and processing of the records.
Because an unintentional slip-up on the archivists’ part could result in
the loss of individual privacy protection, and possibly result in litigation
against the agency and its staff, every step of the process was checked,
rechecked, and checked again. A team of three archivists was assigned
this responsibility, and scanning began. Each scanned image was
reviewed by two archivists for accuracy and completeness. Two archivists
separately indexed the personal names on each page, and a third
archivist checked each page. Ultimately, the index consisted of approxi-
m ately 300,000 name occurrences comprising approximately 87,000
unique name forms.
The inquiry stage began in January of 1997. MDAH alerted the public
by placing advertisements in the local and national press for three suc-
cessive weeks. These advertisements invited people who believed that
their names might appear in the records to write to MDAH. The agency
received approximately one thousand initial inquiries within the ninety-
day period established by the court, and the MDAH processing team
mailed detailed questionnaires to each respondent. This notification
procedure also required triple-checking of addresses, mailings, receipts,
and requests. Seven hundred completed questionnaires were returned.
In the next ninety-day period established by the court, the processing
team searched for individuals in the records based on information pro-
vided in the questionnaires. Records containing approximately 360 of
the individuals’ names were located. Again, each search was performed
SAA SAMPLER 56
by one archivist and replicated by a second, with the search results

approved by a third archivist. To ensure complete privacy, MDAH
redacted all other names in these records before providing copies for
the respondents.51 As before, the redactions were done by one archivist,
checked by a second, and reviewed by a third. Production of the respon-
dent review copies followed the same process. At the end of the ninety-
day period in August of 1997, MDAH mailed the respondents printouts
generated from the image database containing every document in which
the requested name appeared, along with instructions on how to declare
privacy options.52 Most respondents chose full disclosure, but forty-two
people selected a privacy option.53 The court reviewed the requested pri-
vacy redactions and in each case issued a sealed order determining the
final redactions. A number of plaintiffs contested the court’s redaction
and requested the court to review its decision on their records. The deci-
sion by the court to rule individually on each redaction request removed
a huge burden from MDAH. Initially, discussions had centered on the
archivists redacting names and identifying information. MDAH quickly
realized that such a task would be nearly impossible. Many whose names
were in the records were still living, and the historical period covered by
the records had been scrutinized by historians and others. It would have
been too easy to positively identify an individual. MDAH feared resulting
litigation from such identifications. From the MDAH perspective, the
court was truly wise in requiring the individuals to ask for their own
redactions, with a final court review of the request.
On 13 January 1998, Judge Barbour ordered all noncontested com-
mission records to be opened in March. Contested records included
those of individuals who had made privacy requests and status chal-
lenges. In response to the order, MDAH finalized its system to provide
public access to the noncontested records.54
On 17 March 1998, twenty-one years after the lawsuit was filed, the
bulk of the records of the defunct Mississippi State Sovereignty Commis-
sion were made available in electronic format on three computer work-
stations in the MDAH library. Once again, the production of this
redacted version required the three-stage procedure of checking each
image and index term. Six percent of the records remained in litigation
and stayed closed. There was intense national media attention on open-
ing day, and very few researchers appeared. In the following days and
weeks, a large number of individuals, many who had never been in an
archives before, came to look at the records. Three staff archivists were
assigned to handle the large number of requests mailed in by people
who could not visit the archives.
SAA SAMPLER 57
Subsequent releases in July 2000 and January 2001 concluded the

opening of the files. These newly opened pages incorporated the court-
approved redactions requested by a small number of respondents who,
in exercising their court-established rights, chose to have certain identi-
fying information permanently expunged from the records. In addition,
the releases included over two thousand pages of rebuttal material sub-
mitted by individuals named in the files. In 2002, the proprietary in-
house electronic version was converted to an open system to make it
Web accessible.55
V.
No system of disclosure will be perfect.56
The fight to open commission records mirrors the issues inherent in
the privacy versus access debate. The commission, a state-funded agency,
gathered information on thousands of Mississippi citizens and noncitizens.
Investigative reports often contained intimate and slanderous details,
many of which were the product of hearsay, concerning individual lives.
This type of information was precisely that which the privacy plaintiffs
sought to have restricted. Former activists Edwin King and John Salter
clearly had an “unwarranted invasion of personal privacy” in mind when,
after reviewing documents in the discovery process, they broke from the
ACLU/M access camp and doggedly sued to protect privacy rights. In
subsequent arguments, Salter and King firmly denounced the commis-
sion’s illegal activity and demanded government accountability. Still,
they always promoted the notion of individual privacy rights. Salter and
King also sought to protect the privacy of deceased persons and of those
parties who would have no reason to believe that their names might be
in the files.
Conversely, the access plaintiffs focused on the public’s right to know.
The commission’s records clearly document a pivotal period in the state
and national history. The civil rights movement was in effect a second
American revolution, a reaffirmation of the principles that forged a
nation from a colony. In recent years, civil rights historiography has
evolved from chronicling great men and big events to providing detailed
movement studies. The commission records are of immense historical
value in establishing a fuller understanding of the role of ordinary men
and women in the civil rights movement. County by county and organi-
zation by organization, the commission documented civil rights activi-
ties. Furthermore, the files reveal in detail the extent of white resistance,
illustrating the white establishment’s deep-seated commitment to the sys-
tem of racial apartheid. Although, as with any historical source, the dili-
SAA SAMPLER 58
gent historian will use these records with caution, they undoubtedly pro-
vide a treasure trove of hitherto unseen information.
In addition to their historical value, the commission’s records can also
be used to bring justice in cases of civil rights atrocities. In February 1994,
after leaked commission documents prompted a third retrial, Byron De La
Beckwith was convicted for the 1963 slaying of Medgar Evers, the Missis-
sippi state field secretary for the National Association for the Advancement
of Colored People.57 On 17 March 1998, MDAH delivered commission
documents to the family of Vernon Dahmer, a Hattiesburg businessman
and activist who was killed when the Klan firebombed his home in January
1966.58 These documents were then used in the subsequent trial and con-
viction of former Ku Klux Klan grand wizard Sam Bowers in August 1998.
Newly released commission documents are also being reviewed in connec-
tion with the 1964 murders of civil rights workers James Chaney, Andrew
Goodman, and Michael Schwerner in Neshoba County and in the February
1967 murder of Wharlest Jackson in Natchez.59
The May 1994 ruling, which established the procedure to open the
records, attempted to balance the needs of privacy against the demands
of access. In his earlier 1989 ruling, Judge Barbour clearly considered
public interest to far outweigh privacy concerns. In overturning the 1989
ruling in 1990, however, the Fifth Circuit Court of Appeals stressed that
the “disclosure strand of the privacy interest in turn includes the right to
be free from the government disclosing private matters in which it does
not have a legitimate proper concern.”60 Subsequently, while stating in
1994 “that so long as the Commission files remain sealed, there is a con-
tinuing violation of the federal constitutional rights of those named in
the files,” Judge Barbour acknowledged that the rights of victims “would
be violated again if information about these victims is disseminated with-
out their knowledge.” In his ruling, Judge Barbour thus recognized the
impossibility of finding a perfect solution to this dilemma, stating that
“no system of disclosure will be perfect.”61
VI.
The “ . . . greatest drawback to investigation” was “the inaccessibility
of public archives due to unnecessary restrictions.”62
The Mississippi Sovereignty Commission records left an indelible
impression on the archivists charged with their maintenance. Processing
such an infamous and historically significant collection constituted a
grave responsibility. The case also identified the total absence of an
agency policy on handling privacy-sensitive records and led to a reap-
praisal of current agency practices.
SAA SAMPLER 59
As noted above, MDAH’s legal mandate is demanding. For the first sev-
eral years of litigation, after having successfully saved the records from
destruction in 1977, MDAH remained passive. With the first ruling,
MDAH found itself merely reacting to events. The Sovereignty Commis-
sion saga brought into stark focus that passivity is not an option in a mod-
ern information-hungry and litigious society. MDAH needed to establish
policies and procedures for dealing with privacy-sensitive materials and to
step beyond the traditional role as a mere keeper of records. MDAH
acknowledged that responsibility in January 1990 when the board of
trustees, contrary to the positions taken by the state governor and attorney
general, endorsed privacy screening for the commission records.
Development of a program has not been easy. No state statutory
authority provides for privacy in public records unless those records are
specifically deemed confidential by a state law. MDAH has had to work
without specific statutory authority to provide privacy screening, but has
also had to meet the requirements of applicable federal law and court
decisions regarding privacy protection. Increasingly, the easy availability
of personal information in electronic format requires MDAH to be even
more diligent to help prevent the use of archival data for identity theft
and similar acts.
Accordingly, MDAH established the position of privacy officer to over-
see access issues. Initially, many nineteenth- and early twentieth-century
records were closed as statutorily confidential or exempt from public dis-
closure since the passage of the 1983 Mississippi Public Records Act.63
Records such as public hospital admission registers had been available
for public research for decades, but our initial reading of the current
statutes indicated that closure was required. After the records were
closed, researchers were required to obtain a court order for access to
these previously open records. MDAH later determined that the legal
principle of prior publication applied—that is, all of the records that
were publicly available prior to the 1983 Public Records Act had in effect
been published. Consequently, MDAH reopened the records.
MDAH also became aware of the need for a state archival program to
monitor federal court opinions. For example, the Fifth Circuit Court
opinion in Tarlton v. United States64 that prisoner records may be confi-
dential resulted in a reassessment of MDAH prisoner records and the
closure of a number of records series. Again, after a lengthy review,
many of these records were reopened, but one series of probation and
parole records containing victim statements remains closed.
Currently, the privacy officer identifies existing collections containing
privacy-sensitive records and responds to requests for assistance from
processing archivists. The privacy officer consults with MDAH’s legal
SAA SAMPLER 60
counsel at the Office of the Attorney General to interpret applicable

state and federal statutes and case law and to construct access solutions.
A general screening policy has been developed that can be modified for
specific circumstances. With minimal guidance from the privacy officer,
processing archivists are alerted to the type of documents that might
require further consideration. Once relevant collections have been ear-
marked for consideration, the privacy officer either works with the pro-
cessing archivists or personally conducts a lengthy review of the records.
When the privacy officer limits access, finding aids include explanatory
statements and the privacy officer remains on-call to assist reference
staff. A significant problem remains with the failure of state agencies to
design their records to allow the efficient redaction of personal data.
Currently, MDAH is prohibited from “determining the nature and form
of records” created by other agencies, 65 and until such time as the
archival program can influence recordkeeping practices, long-term pri-
vacy protection problems will abound.
To date, the privacy officer’s primary focus has been to review the valid-
ity of existing restrictions. Many closed nineteenth- and early twentieth-
century government records have now been reopened. There has also
been a concerted effort to generally heighten staff awareness of potential
privacy and related legal issues. Staff members have attended workshops
on copyright and privacy and confidentiality, and the services of a copy-
right attorney have been retained. In addition, the records scheduling
process has been overhauled. Access issues now receive greater emphasis
at the time of records scheduling. Vague determinations rarely slip by.
The tasks are colossal and remain far from completion. Many semi-
processed collections lie in limbo awaiting a privacy review. Staffing limi-
tations have required the shelving of a systematic approach to access
assessment in favor of ad hoc responses to the most pressing needs. In
addition, as MDAH prepared for a new building in 2003, energies
shifted to preparations for the move. However, despite all of its current
inadequacies, the archives recognizes the importance of protecting pri-
vacy and the groundwork is in place.
VII.
Any ethical stance constrains someone’s freedom; that does not mean
such a stance is unreasonable or unjust. In the end, our acceptance of
limitations on the pursuit of knowledge in order to protect a greater
common interest is what distinguishes us as moral beings.66
Archivists do not exist in a vacuum, but must respond appropriately to

the social, cultural, and political environment in which they live and
SAA SAMPLER 61
work. Archivists fulfill a dual role. They provide access to the records
that they maintain and they protect the subjects of those records. This
duality is stressed in the Code of Ethics for Archivists, which states:
Archivists answer courteously and with a spirit of helpfulness all
reasonable inquiries about their holdings, and encourage use of them to
the greatest extent compatible with institutional policies, preservation of
holdings, legal considerations, individual rights, donor agreements, and
judicious use of archival resources. They explain pertinent restrictions to
potential users, and apply them equitably.
Use is tempered by privacy considerations. The code directs archivists to
“ . . . weigh the need for openness and the need to respect privacy
rights to determine whether the release of the records or information
from records would constitute an invasion of privacy.”67
Thus, while archivists perform a dual role, they have a single purpose.
Access policies should not be viewed as raising the sinister specter of cen-
sorship. Access and privacy are not contradictions, but as Heather Mac-
Neil concludes in her study of the ethics of disclosure:
. . . any ethical stance constrains someone’s freedom; that does not
mean such a stance is unreasonable or unjust. In the end, our
acceptance of limitations on the pursuit of knowledge in order to protect
a greater common interest is what distinguishes us as moral beings.68
Archivists often are wary of establishing draconian restrictions, yet
they must manage their collections in an ethical manner. Access policies
should be based on legal obligations and require archivists to keep
abreast of evolving state and federal laws. Access policies should encom-
pass responsible collection management and reference policies, but not
censorship. They afford archivists the opportunity to truly address and
respond to the needs of the public. Access policies require dialogue with
the public. By explaining the need for such policies, archivists can articu-
late their professional responsibilities. Furthermore, by being responsive
to and communicating with the public, archivists foster a better under-
standing of the profession. Thus, access policies enable archivists to show
that our profession constitutes a crucial element of the national informa-
tion infrastructure and remains vital to the democratic process. To
reassert John Carlin’s statement, the opening of the Sovereignty Com-
mission records affirms the archival role in enabling people to see for
themselves just what the state government did and allows Mississippi citi-
zens to hold the government accountable. In the final analysis, fulfilling
such a noble function is a rare honor.
SAA SAMPLER 62
Notes to Pages 150–163 175
Chapter 10. Balancing Privacy and Access

1. James Madison, letter to W. T. Barry, 4 August 1822, in Letters and Other Writings of
James Madison, vol. 3, ed. Philip R. Fendall (Philadelphia: Lippincott, 1865), 276.
2. John W. Carlin, “Strategic Directions for the National Archives and Records Adminis-
tration,” National Archives and Records Administration, 9 September 1998 available
as of 2002 at http://www.nara.gov/nara/vision/vision.html.
3. Created on 26 February 1902 by S.B. 26, Laws of Mississippi, chapter 52, the depart-
ment followed by a year the establishment of the Alabama Department of Archives
and History.
4. Madel Morgan to Raymond D. Geselbracht, Archivist, Office of the Presidential
Libraries, Washington D.C., 26 November 1985, Series 1297: Division Director’s Cor-
respondence, Mississippi Department of Archives and History.
5. Dunbar Rowland, “The Concentration of State and National Archives,” American His-
torical Association Annual Report (1910), 298.
6. Mississippi Department of Archives and History, Seventh Annual Report of the Director of
Archives and History of the State of Mississippi (1 October 1907–1 October 1908), 20;
Tenth Annual Report (1 November 1909–3 October 1910), 11.
7. Mississippi Code Annotated (1972), Title 25, Chapter 59, Section 17-15.
8. Ibid., 25-59-27.
9. Mississippi Attorney General’s Opinion to W. R. Lewis, 7 December 1995.
10. Mississippi Code Annotated (1972), 25-59-29 (Mississippi Laws, 1996, Chapter 453,
560–64).
11. Bill Minor, New Orleans Times-Picayune, 22 April 1973.
12. 347 U.S. 483 (1954).
13. General Laws of the State of Mississippi, 1956, Chapter 365, 520–24.
14. Unsigned Sovereignty Commission speech, filing date 13 July 1958, S.C. Records id.
# 7-0-1-56-2-1-1.
15. Erle Johnston, memo, 24 June 1965, S.C. Records id. # 9-31-4-3-1-1-1.
16. 42 U.S.C.A. 2000a-2000a-6.
17. 79 Stat. 437, 42 U.S.C.A. 1973.
18. Johnston, memo S.C. Records, id. # 99-34-0-14-1-1-1.
19. Johnston, memo 8 February 1965, S.C. Records, id. # 99-62-0-33-1-1-1; Johnston,
memo, 11 February 1965, S.C. Records, id. # 99-62-0-196-1-1-1.
20. Johnston, memo, 23 June 1964, S.C. Records, id. # 99-36-0-21-1-1-1 to 4-1-1-1. Johnston
to Hon. Doty Jackson, 10 February 1966, S.C. Records, id. # 99-62-0-94-1-1-1 to 2-1-1.
21. Johnston, letter to Federation of Constitutional Government, 4 May 1964, S.C.
Records, id. # 6-70-0-165-1-1-1; Johnston, speech, Canton Lyons’ Club, 13 May 1964,
S.C. Records, id. # 99-62-0-16-3-1-1- to 5-1-1-1; Laws of Mississippi, Chapter 157, 9 April
1964, 135–36; Johnston, memo, 5 June 1964, S.C. Records, id. # 99-36-0-26-1-1-1;
Johnston, memo, Senate and House Appropriations Committee, 25 May 1964, S.C.
Records, id. # 99-36-0-38-1-1-1. Report, “Citizen Council Grant,” S.C. Records, id. #
99-30-0-46-1-1-1 to 2-1-1.
22. Johnston, memo to Governor Johnson, 29 March 1965, S.C. Records, id. # 99-34-0-9-
1-1-1 to -2-1-1.
23. Commercial Appeal, 28 September 1997.
24. Journal of the House of Representatives of the state of Mississippi at a regular session thereof in
the city of Jackson commencing Tuesday, January 4, 1977, 19.
25. E. Hilliard, letter to MDAH Board, 24 January 1977, Series 1250: Minutes and
Related Material, MDAH; House Journal, Regular Session, 1977, 19, 121, 82; Daily News,
28 January 1977; Erle Johnston, Mississippi’s Defiant Years, 1953–1973: An Interpretive
SAA SAMPLER 63
176 Notes to Pages 163–169
Documentary with Personal Experiences (Forest, Miss.: Lake Harbor Publishers, 1990),
379–80; Yasuhiro Katagiri, The Mississippi State Sovereignty Commission—Civil Rights and
State’s Rights (Jackson: University Press of Mississippi, 2001), 415–18.
26. “Department of Archives and History, Minutes of a Meeting of the Board of Trustees,
January 28, 1977,” Series 1250, MDAH; Clarion-Ledger, 29 January 1977.
27. Tupelo Daily Journal, 17 February 1977.
28. Daily News, 17 February 1977; Clarion-Ledger, 17 February 1977, 18 February 1977;
Johnston, Defiant Years, 381; Katagiri, Mississippi State Sovereignty Commission—Civil
Rights and States’ Rights, note 15, 668; Tupelo Daily Journal, 17 February 1977.
29. Laws of Mississippi, 1977, Chapter 320, 447–48.
30. “Department of Archives and History, Minutes of a Meeting of the Executive Com-
mittee Board of Trustees, March 11, 1977,” Series 1250, MDAH; Laws of Mississippi,
1977, Chapter 320, 447–48; Clarion-Ledger, 22 May 1977. Actually, the total number of
pages would not be known for twenty-five years.
31. Four years later, the 1981 Archives and Records Management Act would give
archivists the authority to “inspect closed or restricted records in order to appraise
them for archival significance.” Unfortunately, that law could not be applied to the
Sovereignty Commission records.
32. Clarion-Ledger, 28 July 1989.
33. 638 F.2d 1336 (5th Cir. 1981), 31 Fed. R. Srv. 2d (Callaghan) 380.
34. Calvin Trillin, “State Secrets,” The New Yorker, 29 May 1995, 58; Daily News, 30 Octo-
ber 1984, 29 November 1984.
35. American Civil Liberties Union (“ACLU”) v. Fordice, 969 F. Supp. 403 (S.D. Miss. 1994).
36. Daily News, 31 December 1990; Civil Action J77-0047(B), American Civil Liberties Union
(“ACLU”) v. Mabus, 719 F. Supp. 1345 (S.D. Miss. 1989).
38. ACLU v. Mabus, 719 F. Supp. 1345 (S.D. Miss. 1989).
39. Ibid.
41. ACLU v. Mabus.
42. Series 1250: Minutes and Related Materials, 1990: Jan 19.
43. Ibid.
44. Ibid.
45. Series 1254: Executive Directors Correspondence, 1990: 27 April.
46. American Civil Liberties Union of Mississippi, Inc. v. State of Mississippi, 911 F. 2d 1066
(5th Cir. 1990).
47. ACLU v. Fordice, 969 F. Supp. 403 (S.D.Miss. 1994); Clarion-Ledger, 4 November 1989,
23 November 1989, 21 September 1993, 24 September 1993, 30 September 1993;
Washington Post, 6 February 1994.
48. ACLU v. Fordice; Memorandum and Opinion Order, Civil Action No. J77-0047B, filed
31 May 1994.
49. ACLU v. Fordice.
50. Clarion-Ledger, 1 June 1994; Dixon Pyles to Clerk of Fifth Circuit Court of Appeals, 4
November 1994, Sovereignty Commission “Control Folder,” MDAH; John R. Salter to
M. Bowers, 28 December 1994, ibid.; American Civil Liberties Union of Mississippi, Inc. v.
King, 84 F. 3d 784 (5th Cir. 1996); Clarion-Ledger, 14 June 1996, 16 September 1996,
19 November 1996.
51. Because the final scope of required redaction was yet to be determined, all other
names were redacted.
52. Inquiry Packet rough draft and notations, Control Folder, MDAH.
SAA SAMPLER 64
Notes to Pages 169–174 177
54. Clarion-Ledger, 14 January 1998.

55. The Sovereignty Commission Records On-line are available at http://www.mdah.
state.ms.us.
56. Quoted from ACLU v. Fordice.
57. Evers was leading an integration campaign in Jackson, Mississippi, at the time he was shot
and killed outside of his home by a sniper. Byron De La Beckwith died in prison in 2001.
58. Respected grocery store owner, community leader, and activist, Vernon Dahmer
offered to pay poll taxes to enable poor people to vote. Following a local radio sta-
tion broadcast of his offer, Dahmer’s Hattiesburg home was firebombed. He suc-
cumbed on 10 January 1966, from severe burns.
59. Wharlest Jackson was the treasurer of the Natchez branch of the NAACP. He was
killed instantly on 27 February 1967 when a bomb exploded in his car.
61. Ibid.
62. Dunbar Rowland, “The Concentration of State and National Archives,” American His-
torical Association Annual Report (1910), 298.
63. Mississippi Code Annotated (1972) Section 25-61-1.
64. Tarlton v. United States, 430 F.2d 1531 (5th Cir. 1970).
65. Mississippi Code Annotated (1972) Section 25-59-16(f).
66. Heather MacNeil, Without Consent: The Ethics of Disclosing Personal Information in Public
Archives (Metuchen, N.J.: Society of American Archivists and Scarecrow Press, 1992),
172–73.
67. The Council of the Society of American Archivists, “Code of Ethics for Archivists”
(Chicago: Society of American Archivists, 1992), 3–4.
68. MacNeil, Without Consent, 172–73.
SAA SAMPLER 65

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SAA SAMPLER

LAW & ETHICS

PRIVACY & CONFIDENTIALITY PERSPECTIVES

“ Privacy and Confidentiality Perspectives fills a crucial void in the corpus of

Browse archives titles at

PMS 728 Pantone Process Black

LAW & ETHICS

LAW & ETHICS

and reflect page numbering for this compilation.

PRIVACY & CONFIDENTIALITY PERSPECTIVES

Law and Ethics Contents

“ Privacy and Confidentiality Perspectives fills a crucial void in the corpus of

“Copyright and Related Rights Issues: Permissions, Releases, Music, and

Moral Rights,” Chapter 21 from Navigating Legal Issues in Archives . . . . 6

Compiled with an Introduction

© 2012 by the Society of American Archivists. All rights reserved.

SAA SAMPLER iii

1) “Copyright and Related Rights Issues: Permissions, Releases, Music,

Menzi L. Behrnd-Klodt, an attorney and archivist, presents a practical

2) “Case Study: The Cigarette Papers.” Chapter 5 (pp. 165–180) in

Elena S. Danielson, who holds a PhD from Stanford University and

Legal and ethical concerns converge in “Balancing Privacy and Access:

Lisa A. Mix is the head of the Medical Center Archives at

SAA SAMPLER 248

Why is this topic important to archivists?

Who will find this chapter especially useful?

SAA SAMPLER 249

Using Copyrighted Text, Images, and Music: The Permissions Process

Permission to Use Photographs; Releases

Obtaining permission to reproduce, publish, and distribute photographs

photographer’s shoes,” in terms of being able to use, grant permission to use,

Rights License and Release – for Adult

Dated this ___ day of , 2007.

Signature: Address: ______________

Print Name: City, State, Zip: ______

Oral History, Videography, and Copyright; Releases of Rights

When researchers want to use, reproduce, or quote from oral or video

Accession No. ______________

THE HISTORICAL SOCIETY

ORAL HISTORY AUDIO-VISUAL RELEASE FORM

assign forever, to The Historical Society, as a donation, all of my right, title,

summaries, transcripts, or copies thereof and any documentation accompanying

The recorded material is further described as follows:

Signed Date _____

Signed Date _____

THE FOREGOING MATERIAL IS ACCEPTED FOR THE

Release of Rights to Use Quotation

[Name of Archives or Parent Institution] (the “Archives”) [briefly characterize the

Permission to Use Music

The European Concepts

Copyright protects the property rights of the author or creator of the

non-economic personal and reputational rights in their works which warrant

(1) the right to permit or prevent disclosure or publication of a work

The right of integrity permits an author or artist to prevent alteration or

Integration of Moral Rights Concepts into American Law

Development and integration of moral rights concepts into American

Visual Artists Rights Act of 1990 (VARA)21

fought “tobacco wars.” The competing demands of private corporations

passed around in a surreptitious manner due to fear of retaliation from