alison steele - legal issues for journalists

8/9/2019 Alison Steele - Legal Issues for Journalists

http://slidepdf.com/reader/full/alison-steele-legal-issues-for-journalists 1/26

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



Categories of Issues

*Torts

defamation, invasion of privacy,

misappropriation of name/likeness*Intellectual Property (IP)

copyright, trademark, patent

*Business Relationships

business organizations and contracts



Torts

Defamation

Publication of false fact, stated or implied

Damaging to reputation Fault

»Negligence

»³Actual Malice´



A variety of situations

Getting facts wrong

Omitting facts

Implying facts Altering quotes

Context and juxtaposition errors

Adjectives and Adverbs



Protections from Liability

Reporting from public records

Reporting statements of public officials

Opinion?

³I was just the editor´?



Invasion of Privacy

Publication of embarrassing private facts

Intrusion

Misappropriation of name/likeness



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



Intellectual Property

Trademarks and service marks are words,phrases or symbols used to identify thesource of goods or services in commerce

Think ³BRAND´



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.´



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



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.



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.



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



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.´



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



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?



Types of Legal Relationships betweenpublisher and content supplier

Employee

Independent contractor

Unpaid Volunteer?



Employees

³Staff´ with ³jobs´ and ³job descriptions´and ³duties´ and ³paychecks´

Employer owns their works

Employer owes FICA, etc.



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



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!



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´



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´



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.



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.



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´



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

alison steele - legal issues for journalists

Documents