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2017

LEGALGUIDEG U I D E L I N E S F O R C A N A D I A N S T U D E N T J O U R N A L I S T S

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DOING IT RIGHT Professional Standards of Excellence for Student Journalists

This reference guide contains a brief description of general Canadian legal principles as they apply to scholastic journalism and student yearbook staff members. It is meant to provide a brief overview and serve as a handy reference resource for yearbook advisors and staffs.

This reference guide is not intended to be, nor should be construed as, legal advice from Jostens. For online resources related to student journalism, visit the Canadian University Press website at www.cup.ca or the Canadian Association of Journalists website at www.caj.ca. For more detailed explanations of the legal issues and terms discussed in this guide under federal and provincial laws, consult your school board’s attorney.

THE HALLMARKS OF JOURNALISMFairness, Accuracy, Good Taste

Being a yearbook staff member is fun, challenging and rewarding. In telling the story of the year, staff members wear many “hats,” including creating

and marketing a product, managing a small business enterprise and upholding the high ethical standards set by the journalism profession. Student journalists are held to the same important legal and ethical standards and guidelines as their professional peers at print and digital media outlets.

FAIRNESS: All reporting must be fair and unbiased. The yearbook should not be used as a platform for personal views. Both sides of a story should be told.

ACCURACY:All names, quotes and information, including anything submitted by non-staffers, should be checked carefully.

GOOD TASTE:Thoughtful decisions and high standards will ensure that the yearbook is free of questionable material such as racist or sexist remarks, ethnic slurs, crude humour, inside jokes, cruel remarks and glamourizing illegal activities.

IS IT LEGAL?

This Legal Guide © 2016 Jostens Canada, Ltd. All rights reserved. 160197

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EVERYONE HAS THE FOLLOWING FUNDAMENTAL FREEDOMS:(a) freedom of conscience and religion;(b) freedom of thought, belief, opinion and

expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and(d) freedom of association.Canadian Charter of Rights and Freedoms, §2

FREEDOM OF THE PRESS IN CANADA IS NOT UNLIMITED Canada’s 1982 constitution guarantees freedom of the press and

freedom of expression through the Canadian Charter of Rights and Freedoms. Despite this, school officials generally have final say over the content of school-sponsored publications. For a high school yearbook that is considered a school-sponsored activity or part of the curriculum, this means that censorship with a reasonable educational justification, as well as prior review of material by school officials, might be allowed.

ESTABLISH GUIDELINES WITH A PUBLICATION POLICYWorking with school administrators to establish clear guidelines for

what is acceptable in the publication is one of the best ways to ensure that the yearbook meets journalistic standards of fairness, accuracy and good taste.

These guidelines should be stated in a formal, written editorial policy or publication policy and approved by the appropriate school decision-makers. These guidelines should also be communicated to all yearbook staff members. In discussions about policy and about proposed content, students can demonstrate that they are making content.

FREEDOM OF THE PRESS AND STUDENT JOURNALISTS

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LIBEL Libel, a form of defamation, is a communication about a person to a third party in a permanent form (e.g., a letter, a newspaper, a blog, an email, a TV broadcast or film, etc.) that harms a person’s name or reputation in the community by bringing hatred, contempt or ridicule. By law, reputation is protected against libel. (The other form of defamation is slander, a spoken or gestured communication, i.e., communication in “transient” form.)

These basic elements define libel:

• Act: A statement was communicated to a third party (someone other than the person defamed by the statement).

• Identifiable: It can be reasonably inferred that the defamatory statement refers to the person claiming defamation.

• Injury: The statement must lower the person’s actual reputation in the eyes of a reasonable person.

In most of Canada, defamation is a “strict liability” law – if the three elements occur, defamation happens. In Quebec, defamation is proven differently – a plaintiff must demonstrate, on a balance of probabilities, the existence of an injury, a wrongful act, and a causal connection between them.

TRUTH IS A DEFENCE AGAINST LIBELTrue statements are not considered defamatory. Therefore, truth may be a defence

against a claim of libel. A statement proven true is generally not libelous. Checking facts carefully, consulting multiple sources and publishing only material that has been verified as accurate are important steps to help minimize problems with libel.

FAIR COMMENT IS A DEFENCE AGAINST LIBELStatements which are fair commentary on a particular situation, and not maliciously

made, are not defamatory. Therefore, fair comment is also a defence against a claim of libel.

INTENT IS NOT A DEFENCEIt does not matter what meaning a writer or photographer (yes, images, another

form of permanent record, are subject to libel scrutiny too!) intended to communicate. If a person can reasonably take a statement — or an image — seriously, it may be considered libelous. In a yearbook, joke captions that attempt to be funny as well as captions that incorrectly identify someone may be considered libelous. Photographs, and other visual media, that attempt to be funny but that demean, defame, disgrace or damage a person’s reputation may be considered libelous as well.

LEGAL LIMITATIONS

To adhere to legal and ethical standards as they apply to the field

of journalism, student journalists need to educate themselves

about such legal concepts as libel, copyrights and trademarks.

The following information is not a complete discussion of these

issues, but rather a high-level overview.

“Checking facts

carefully, consulting

multiple sources

and publishing

only material that

has been verified

as accurate are

important steps

to help minimize

problems with libel.”

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COPYRIGHT & TRADEMARK PROTECTION Copyright and trademark laws restrict the use of material belonging to or created by others.

WHAT IS A COPYRIGHT?While ideas and facts cannot be copyrighted, the way they’re expressed can be.

Copyright law protects the owner’s right to control the use of their intellectual property. Copyright protection automatically starts when a work is created. Many copyrighted materials display the copyright symbol ©, the name of the author of the work and the date of publication or copyright.

Anyone who uses copyrighted material without prior permission of the copyright owner or whose use is outside of an exception provided by law may be guilty of copyright infringement. It’s best to assume that all published works, including works posted on the Internet and unpublished works, are protected by copyright law. An unpublished work produced by a government department may be subject to Crown copyright on a perpetual basis. Works in the public domain are unprotected by copyright law (see Public Domain). Examples of other works that generally do not have copyright protection include:

• Titles• Short phrases or slogans• Procedures, processes, systems

EXAMPLES OF COPYRIGHTED MATERIALSMuch of the material encountered in daily life is legally owned by someone. Some of

the most common materials protected under copyright law may include:• Song lyrics• Literary works, including prose, poetry, books, plays, etc.• Artwork, including pictures, photos, sculptures, paintings, graphics, textiles, etc.• Photos• Titles of books, movies, etc., if the titles are used on merchandising items• Music, sound recording, videos, audiovisual works• Maps, stamps, games, currency• Cartoon characters, movie and television characters• Websites, screen shots and web pages• Computer software• Corporate logos and/or graphics

USING COPYRIGHTED MATERIALS IN THE YEARBOOKBefore including materials in your publication, contact the owner of the materials and

ask for permission. Even if something has not been published, such as a poem written by a student, it is still necessary to obtain permission before publishing.

FAIR DEALINGThe concept of fair dealing offers an exception to the rules of copyright law and

copyright infringement. Under fair dealing guidelines, one is permitted to use a limited amount of a copyrighted work without prior permission, so long as the material in question is used for purposes such as research, private study, education, parody or satire. Fair use may or may not apply to materials used in your yearbook based on a variety of factors including the context of use.

PUBLIC DOMAINCopyright does not last forever. Once a copyright expires, the work is considered to

be in the public domain and it is safe to use without first obtaining permission from the former copyright owner.

COPYRIGHT INFRINGEMENTStudent journalists who use copyrighted material without permission (other than what

is acceptable under fair use and public domain guidelines) may be liable for copyright infringement. This can result in a lawsuit and legal penalties for both the publication and the school. Exemplary and punitive damages may also be awarded in certain cases.

“Copyright law

protects the owner’s

right to control

the use of their

intellectual property”

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USE OF COPYRIGHTED MATERIALS The following is a brief overview of some of the more commonly copyrighted materials with guidelines on permissible usage.

SONG LYRICSSong lyrics may be subject to “fair dealing” limitations if, among other things,

the material used is limited to a small portion of the work, the use does not reflect negatively on the work and no endorsement is implied in the use. However, even if the song lyrics in question fall under the “fair dealing” or public domain guidelines, it is appropriate to credit the author of the work.

POETRYYou can use brief quotes from poetry as long as the quote does not constitute a

substantial portion of the work. If you are unsure as to whether a quote represents a substantial portion of the material, ask to see the entire poem. Four lines of poetry are a small portion of an epic poem, but an entire haiku is less than four lines and, thus, should not be used without prior written permission from the author. If possible, format poetry with the same alignment as the original and give the author credit for his/her work.

QUOTESBrief quotes are generally acceptable without prior written permission. You can use

quotes that are within the public domain without seeking permission. You can also quote public figures as long as you attach the appropriate attribution. For example, you can use a brief quote by Prime Minister Trudeau from Maclean’s magazine, but be sure to include the citation.

TITLES OF BOOKS, SONGS AND MOVIESTitles are generally not copyrightable because they are by their nature not

sufficiently original. Titles of books, songs and movies are available to the public without compensation to the author. However, some titles may qualify as trademarks if they are used on merchandising items (see What Is a Trademark?).

CARTOON CHARACTERSAny cartoon character in a cartoon strip, TV show or movie may be copyrighted

and is potentially protected by trademark law as well as copyright law. Even if a student at your school draws a replica of the cartoon character, reproduction of the character may be inappropriate. It is best to obtain prior permission to use a cartoon character.

GAMES AND GAME BOARDSGames such as Monopoly®, Trivial Pursuit®, etc. are subject to copyright and

trademark protection and cannot be reproduced without permission. Making slight modifications to a game board or any other copyrighted material is most likely insufficient to use such material without permission.

SOCIAL MEDIA SERVICES AND ICONSSimilarly, social media icons and the “look and feel” of social media services such as

Twitter, Facebook, Instagram, Snapchat, Pinterest and Tumblr are subject to copyright and trademark protection and cannot be reproduced without permission. Ensure you review and follow the online branding guidelines for social media services.

DETERMINING IF A WORK IS IN THE PUBLIC DOMAIN

• A sole creator’s copyright on his/her work (in paper or electronic form) remains in effect for his/her lifetime, plus fifty years after his/her death (the “life plus fifty” rule). In the U.S. and Europe, the rule is “life plus seventy,” so the country in which a work originates can be very important. There are some special rules for works posthumously published.

• If a work has joint authors, the work does not enter the public domain until fifty years after the death of the last author. Again, there are some special rules for works published after the death of one (but not all) of the authors.

• A creator’s copyright on his/her audio recording remains in effect for his/her lifetime, plus seventy years from the date the recording is first published. If it’s unpublished, it has a 50-year copyright term, but once published the copyright term will be seventy years from first publication or 100 years from creation, whichever is shorter.

• If the author of a work is unknown, the work becomes public domain on the earlier of 50 years after first publication, or 75 years after creation. There is a special rule if one or more authors become known before the work goes into the public domain.

• Photographs taken in Canada prior to 1949 are in the public domain. Photographs taken in 1949 or later owned by an individual enter the public domain fifty years after the death of the photographer. There are special rules for photographs owned by a corporation.

• Canadian federal and provincial government records which are more than 50 years old are in the public domain (with exceptions for materials subject to Crown copyright).

• Copyright on works-for-hire (for example an article in a magazine where the creator received compensation) lasts for fifty years after the death of the author, but the person who employed the author owns the copyright.

• Anonymous work may be protected by copyright and enters the public domain on the same basis as any other copyrighted material.

The University of British Columbia has posted a guide to public domain on their website at http://copyright.ubc.ca/guidelines-and-resources/support-guides/public-domain. The Council of Ministers of Education, Canada also offer copyright resources on their website at http://www.cmec.ca.

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MAPSMost commercially produced maps, except some government publications, are protected

by copyright laws. The law covers any map published in print, on the Internet, on a CD-ROM, etc., and includes street maps, atlases, road maps, decorative maps, perspective view maps, wall maps, locator maps, cartoon maps and globes. This applies to “screen captures” from Google Maps or similar mapping websites.

If you acquire a map for “free” from CAA, or some other source, the map is still protected by copyright. The name of the copyright holder and the word “copyright” or the symbol © is usually printed or displayed somewhere on the map. However, copyright law and copyright infringement penalties apply whether or not the copyright identification appears on the map.

SCHOOL PORTRAITS AND GROUP SHOTSStudent and faculty portraits and group photos, even those taken by a professional

photographer under contract with the school, are copyrighted by the photographer. As part of the contract, the school is generally given permission to reproduce these images in the yearbook. It is likely the yearbook staff does not have permission to share these images with others without first obtaining permission from the copyright holder. It is the responsibility of the school to ensure that it has permission to provide the photographer’s images to a yearbook publisher for that publisher’s use in creating the yearbook.

PHOTOGRAPHS OF FAMOUS PEOPLEPhotographs of celebrities are subject to copyright protection. The rights to the

photographs are usually owned by the photographer or the publisher of the photograph. The copyright holder’s name typically appears along the side or bottom of the

photograph. While you may be able to obtain the right to publish these photographs from press services or photo archives, using a celebrity photograph to sell or advertise a product or service may violate the celebrity’s right of publicity.

THE INTERNET All rights and issues relating to libel, obscenity and copyright and trademark fully

apply to the use of material posted on the Internet or taken from the Internet.You must obtain prior written permission to use material (written material,

photographs, videos, movies, songs, etc.) posted on the Internet before including that material in your student publication.

Materials that otherwise might be obscene or libelous when published in other mediums would likely continue to be considered obscene or libelous when posted on or taken from the Internet. Posting materials on the Internet may also subject you to the laws and regulations of legal international jurisdictions in countries outside of Canada.

CREATIVE COMMONS LICENSEWorks subject to a Creative Commons license can generally be freely distributed,

but may have restrictions on adapting or modifying the work, restrictions on using it for commercial purposes, and/or attribution requirements. Check the Creative Commons license before use.

WEB PAGESAccording to The Student Media Guide to Internet Law, a website is copyrighted

just like any other type of original work and falls under the protection of copyright laws. Be careful not to assume that anything posted on a web page is in the public domain. Much, if not all, of the material may be protected by copyright and/or trademark law.

Copyright and trademark rights still apply and permission to use materials (graphics, images, text, music, etc.) posted on a web page must be obtained from the owner. This rule applies to social networking places such as Facebook and Instagram pages, too.

Remember, the owner of the posted material may or may not be the owner of the web page or website. Be sure to check the website for contact information to begin the process of obtaining permission before republishing any of the materials posted to a web page or website.

PHOTOGRAPHS DOWNLOADED FROM THE INTERNET

Many people think that if something can be found on the Internet, it’s in the public domain. That’s not the case.

Some photographs posted on the Internet may be available for use without prior permission because the image may be in the public domain. When this is the case, you’ll see a statement stating: “The image (or other media file) is in the public domain because its copyright has expired.”

If this public domain statement is not posted, the image (or other media file) is most likely copyrighted material and you must obtain permission before you republish the downloaded photographs (or media file).

Tracking down the owner may be difficult. If you succeed, be sure that the person giving the permission actually holds the copyright to the photograph (or media file) and is not a copyright infringer.

If you’re looking at public image sites, such as Bing Images or Google Images, you must ensure the photograph is in the public domain (both services have search filters you can apply), or obtain a license to it, before downloading and using it.

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WHAT IS A TRADEMARK? A trademark is a word, sound, or design, or any combination of these items, used

to distinguish a person or organization’s goods or services from those of others. These are also referred to as “ordinary trademarks.” Unlike trademarks in the U.S., Canadian trademarks do not need to be marked with a ®, ™, or similar symbol (but a marking symbol can be used if desired).

One purpose of trademarks is to identify the source of a product and give a representation of consistent and desirable quality symbolized by the mark. Any use of a trademark that is likely to cause confusion as to the source, sponsorship or affiliation of a product or that dilutes the strength or tarnishes the image of a mark could violate the trademark owner’s rights.

SPECIALIZED TYPES OF TRADEMARKSIn addition to ordinary trademarks, there are two specialized types under Canadian

trademark law:

• A Certification Mark is a word, sound, design, or a combination used to classify the nature of goods or services as meeting a defined standard, such as the “woolmark” logo). This type of mark is usually licensed to other persons or organizations for use on their products.

• A Distinguishing Guise is a product shape, design or packaging or combination of these items which is associated with a person or organization.

USE OF TRADEMARK MATERIALSTrademark protection means that trademarked materials cannot be used by a third

party for commercial purposes without permission. Depending upon your desired use of a trademark, you may be able to use trademarked materials under certain circumstances. You should check with your advisor concerning this type of use.

DOS AND DON’TS FOR COMPANY LOGOSCompany logos are protected under trademark laws. What constitutes trademark

law violation, however, depends on how you make use of the logo and whether or not you include the required identifying trademark symbol. For example, you can write that a student “loves Coffee Crisp candy bars.” But you can’t use this trademark as a theme for the yearbook without permission. Similarly, showing a picture of a Nike tennis shoe as part of a section about student fads is not a trademark violation because you are identifying the product.

However, using a company’s logo, such as the Nike swoosh, on the yearbook cover and throughout the yearbook as a theme may constitute trademark infringement and be a violation of trademark law, because Nike may claim that it appears that Nike sponsored or published the yearbook.

You can show a group of students hanging around a Pepsi machine drinking cans of pop, since the Pepsi symbol identifies the product. You cannot use a trademarked phrase from a Pepsi advertising campaign to help sell your yearbook.

®“Using a company’s

logo, such as the

Nike swoosh, on

the yearbook cover

and throughout

the yearbook

as a theme may

constitute trademark

infringement and

be a violation

of trademark

protection laws.”

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OBTAINING PERMISSION If you want to use materials that are copyrighted or trademarked, you need to get

permission from the copyright or trademark holder. Here are some tips to follow.

FIND OUT WHO HOLDS THE COPYRIGHT OR TRADEMARKA published work may include the copyright or trademark holder’s name and

address in the material. If neither is there, try researching that information at your local library or look up the ownership on the Internet. You can search registered copyrights and trademarks through the Canadian Intellectual Property Office website at http://cipo.gc.ca. Many libraries have directories containing publisher’s addresses, telephone numbers and/or email addresses. You may be able to obtain permission to use copyrighted or trademarked material from the person or corporation that owns the trademark. Visit the person or corporation’s website to obtain contact information.

CONTACT THE COPYRIGHT OR TRADEMARK HOLDERYou can try contacting the copyright or trademark holder by phone, but they may

want you to submit your request in writing. Include the following information:• The title, author and/or editor of work to be reproduced (text, photograph, music,

media files, etc.).• The exact material you want to use. For text, this includes page numbers, chapters

and amount. If possible, include a photocopy of the material. For other forms of media, ask the copyright or trademark holder what they require (a copy of the image, a video clip, a music track, etc.).

• The number of copies of your publication in which the material will appear.• The proposed use of materials. In other words, where you want to include the

material and how it will be used. Include a copy of the yearbook page if possible.• The form of distribution.• The distribution location.• Whether you will sell the material.

You may also want to do a Web search to see if a copyright or trademark owner has a usage guide online. A usage guide may tell you if your use is permitted and provide dos and don’ts on how to use it, or if it’s not permitted, may provide contact information or a Web form for requesting permission.

PHOTO RELEASES A signed photo release may be required before you use a photograph or other visual

image of an individual in your school publication.

WHEN THEY’RE REQUIREDSigned photo release forms may be required when an individual is visibly recognizable

in a photograph, video, movie or other visual media format and that photograph is used for a commercial, activity e.g., in a yearbook sold by a school. If the individual is a minor, the signature of a parent or guardian is required on the photo release form. If a photograph taken by school staff is used in a manner that the subject or his/her legal guardian would reasonably expect to take place (a “consistent purpose”), written consent may not be required (for example, parents and students would reasonably expect a class, individual, or team photo may be included in a school yearbook). If a photo is taken in a manner in which no consistent purpose would be reasonably assumed, consent must be obtained. Maintain a file of signed photo release forms and include a reproduction of the image associated with each signed release.

WHEN THEY’RE NOT REQUIREDCrowd scenes, taken at public performances and sporting events, where no single

person can be identified are exempt from the photo release requirement.

ALLOW AMPLE TIME TO RECEIVE PERMISSION

If you want to use copyrighted or trademarked material, make the decision as early as possible and immediately apply for permission to use. Allow sufficient time for a response. It may take a month or more to receive a reply. Also, the copyright or trademark holder may have questions or need assurance on some of the points of your request, thus delaying the turnaround time on your query.

The copyright or trademark holder may want to charge a fee for using the material. You may receive permission to use the material with some restrictions. It is very important to carefully observe those restrictions to avoid delays in your publication. Submit a copy of the permission to use document to your printer along with protected material. Then, your printer will know you have the right to use the material and completion of your publication will not be affected.