Alison Steele - Legal Issues for Journalists
Transcript of Alison Steele - Legal Issues for Journalists
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LEGAL ISSUES FOR
NON-FICTION PUBLISHERS Applying 20 th Century Laws to 21st Century Issues
Presented by Alison Steele
Rahdert, Steele, Reynolds & Driscoll, P.A.
St. Petersburg, Florida
May 7, 2010
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Categories of Issues
*Torts
defamation, invasion of privacy,
misappropriation of name/likeness*Intellectual Property (IP)
copyright, trademark, patent
*Business Relationships
business organizations and contracts
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Torts
Defamation
Publication of false fact, stated or implied
Damaging to reputation Fault
»Negligence
»³Actual Malice´
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A variety of situations
Getting facts wrong
Omitting facts
Implying facts Altering quotes
Context and juxtaposition errors
Adjectives and Adverbs
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Protections from Liability
Reporting from public records
Reporting statements of public officials
Opinion?
³I was just the editor´?
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Invasion of Privacy
Publication of embarrassing private facts
Intrusion
Misappropriation of name/likeness
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Particular concerns
Audio capture
Image capture
Minors Public places vs. private places
Editor ignorance of means by which audio,
image or information was obtained ³Undercover´ reporting vs. non-
identification of media afflilation or purpose
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Intellectual Property
Trademarks and service marks are words,phrases or symbols used to identify thesource of goods or services in commerce
Think ³BRAND´
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Copyright
Basic legal protection for books, plays, poetry, maps,board games, movies, musical compositions, recordings,software, sculptural and graphic works
The name of the bundle of legal rights of an ³author´ inan ³original work´ that is ³fixed in tangible form´ or ³persistent medium,´ either draft or final product. Doesnot protect mere ideas, or ³functional characteristics.´
Unless ³work´ is ³work for hire,´ copyright isautomatically conferred by law on ³creator,´ also knownas ³author,´ at moment of ³fixation.´
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Rights in the Copyright Bundle
To produce a copy of work in same or different medium
To make ³derivative works´ based on thework
To distribute copies by sale, rental, lending
To display the work in public
To transmit the work electronically To grant some or all of these rights, in
whole or in part, to other people
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³Moral rights´
Right to be identified as the author andcredited with the creation of the work, notthe same as ³copyright´
Moral rights can be disclaimed. Contentsuppliers can be asked to disclaim them.
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How does author protect copyrights?How do you know work is owned and not
freely available for you to copy? Since 1978, use of © notice or registration
is NOT NECESSARY for creation of rights.
Cool stuff on the Internet is NOT FREESTUFF!
Because people think stuff without © iscopyright-free, using © or Copyright [your name here](Year of Creation) is a BestPractice. But beware of thinking workswith no notice are copyright-free.
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Copyright, cont.
The registration of copyright in a work is notnecessary to stake a claim of ownership.
www.loc.gov Forms, fees, depositrequirements, searchable index of authorsand works
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How to get or give an
enforceable license. Writing!!!!!!
License may be exclusive or non-
exclusive, temporary or permanent, or have other restrictions as author deemsappropriate (geography or time limits, for example)
Note: ³Fair use´ is a ³license´ granted by law. Four
factors must be analyzed case-by-case to determine if ause is ³fair.´
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Another right or license granted by law?
What is ³work for hire?´* A work ³prepared by an employee within the scope of
his or her employment´
OR
* A specially ordered or commissioned work created ascontribution, translation, supplement, or compilation
AND parties have signed a written agreement to thateffect
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Flash Point
Journalism Avenue meets Business LawStreet right here: The relationship betweenthe publisher and the content supplier:
»Who owns what and how do youknow?
»Who is liable for what mistake or misconduct and how do you know?
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Types of Legal Relationships betweenpublisher and content supplier
Employee
Independent contractor
Unpaid Volunteer?
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Employees
³Staff´ with ³jobs´ and ³job descriptions´and ³duties´ and ³paychecks´
Employer owns their works
Employer owes FICA, etc.
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Independent Contractor
³stringer,´ ³freelancer,´ ³correspondent´
Must have a written contract or you risk
classification as ³employee´ Language is different: you don¶t ³hire´
them, they don¶t have a ³job´ or ³position´
You don¶t train them, you don¶t supervisethem, you don¶t instruct them, they are notintegrated into your operation, you do nothave employees doing the same work
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Independent Contractor, Cont¶d
No set hours of work
Not required to be available
Not full time
Not exclusively obligated
No publisher-provided equipment, supplies or workspace
Expenses not reimbursedNot required to report in
Not paid by the hour, week or month
Publisher does not own his/her works!
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What the Fair Labor Standards
Act (³FLSA´) means to you: Covers workers ³employed by anemployer´
³employ´: ³to suffer or permit to work´
Requires minimum wage per hour andtime-and-a-half overtime pay, unlessemployee is ³exempt´
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Exemptions
Depend mostly on worker pay and nature
of job duties
Pay: at least $455/week salary, paid nomatter the quantity or quality of work)
Job duties: Three main classes of exemptemployees: ³professional,´ ³executive,´³bona fide administrative´
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Volunteer?
Individuals who volunteer or donate their services,usually on a part-time basis, for public service, religious
or humanitarian objectives, not as employees andwithout contemplation of pay, are not consideredemployees of the religious, charitable or similar non-
profit organizations that receive their service.
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Volunteer, Cont¶d:
Law does not contemplate workers volunteeringservices to for-profit private sector employers.
People may volunteer services to non-profitprivate sector entities and to public agencies, butnot to do the same work for which they areemployed for pay.
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Possible approaches to the ³no
volunteers´ rule Non-profit corporation is publisher
No regular or continuing work-like
relationship, no ³assignments´ Language adjustments: not ³contributors,´
but ³members,´ or ³reader-writers´ or ³network´ or ³sources´
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Special protections for electronicpublishers: The Law is in Motion
Communications Decency Act (CDA)
ISP is not ³publisher´ of content
supplied by others
Continuum between pure ³bulletin board´ and contentprovided by news media employees
Digital Millennium Copyright Act (DMCA)
Takedown notices and counter-notices