Legal and Ethical Guidelines

PR 313

Legal Challenges

You will have legal responsibilities in PR Overview of things to avoid:

Political lobbying without disclosing source of funds

Engaging in any illegal activity or encouraging your client to engage in illegal activity

Disseminating information that is misleading, untrue or damaging

Example: Fleishman-Hillard

PR firm Fleishman-Hillard sued by the city of Los Angeles for false accounting and over-billing Settled for $5.7 million in 2005

Example: British Airways

British Airways suspended its head of PR after he collaborated with other major airline companies to determine a strategy relating to fuel surcharges Several lawsuits have been filed claiming that the airline

colluded with other companies for price fixing

Example: Shandwick

An employee of PR firm Shandwick Worldwide forged the signature of Florida governor Jeb Bush on a letter opposing an anti-gambling campaign The employee Matthew Blair had tried to get

approval first, but was refused

Example: Procter & Gamble

There is an investigation of Procter & Gamble’s Tremor viral marketing site

Over 250,000 “opinion leader” teens use the site

Debate exists over whether those teens should disclose their connection

Example: Nike

Nike was sued over false PR campaign that sought to dispel reports that it uses Asian sweatshops

Suit claimed that Nike deliberately obscured several facts as it mounted a campaign promoting “corporate responsibility”

Example: Nike

Court found this to be a case of “commercial speech,” rather than “free speech”

Thus, since the campaign was commercial, it did not fall under the First Amendment’s protection of “free speech”

Defamation

A defamatory statement injures the good name of an individual/company and lowers their standing in the community

Two kinds of defamation Libel Slander

Slander

Slander Spoken word defamation Said to a third person but

not printed or broadcast

Libel

Libel Defamation in a tangible medium (print, Internet

or broadcast) To prove libel, you must show that:

Harm was caused The story was published or broadcast The person/company was identified by name The media was at fault or error The broadcast/published facts must be false

Fair Comment

Truth is the best defense against libel Opinions also have some protection

Include facts to back up your opinion Label your statement as “opinion” Make sure the context is clear

Times Co. vs. Sullivan (1964): Court decision that actual malice must be proved

Privacy

People have the right to be left alone To avoid invading someone’s privacy:

Obtain consent from the individual if taping Do not record phone calls or tape someone without

their knowledge Do not release private information on an

employee

Privacy

It is more difficult to legally invade the privacy of public figures (celebrities, athletes, politicians) since they surrender their privacy rights by the profession they choose

Get Permission

Since your PR campaign likely has an element of commerce, it is subject to a different standard than news gathering

Use of names and likeness in PR campaigns MUST have written consent

Government Regulation

The Securities & Exchange Commission (SEC) has rules that may govern what you can say or do

If you are dealing with information that might have a financial impact on stockholders, you will need to provide “full and prompt disclosure” of all info

Example

There should be equal access to financial data for each publicly-traded company Information must be released simultaneously to

analysts, shareholders and the public Information should not be skewed so that it

misrepresents the financial health of a company

Meet Edgar

SEC filings can be seen at: http://www.sec.gov/edgar.shtml

This is where you can find the complete legal filings of each public company

Federal Trade Commission

The FTC oversees claims of false advertising and publicity

Beware of: False or ambiguous claims Deceptive surveys or testimonials

Other Regulated Areas

Food and Drug Administration Special concerns relating to prescription drugs,

medicines and cosmetics Risks must be disclosed

Bureau of Alcohol, Tobacco and Firearms Limitations on how these items can be publicized

Copyright

Permission is needed from a copyright holder if you want to use protected content in a PR or commercial context Examples:

Reprinting an article for a press kit News or interview footage Using a scene from a movie or a clip from a song

Get written permission before using copyrighted material

You may need to pay a licensing fee

Limited use

Use no more than 400 words from a book or 50 words from an article

When in doubt, get permission Do not use copyrighted information out of

context If your client benefits financially from use of

copyrighted material, there could be legal consequences

Ethics

In addition to legal issues, there may be ethical issues to consider when working with a client

When in doubt, consider the PRSA guidelines

Ethics and PR

Some PR writers are accredited members of the PRSA

These PR officials will earn the APA distinction

If a PR writer is APA accredited, then they must adhere to certain ethical standards

Code Overview

They must adhere to the highest standards of truth

They must give credit where it is due They will not knowingly disseminate false

information

ADVOCACY

We serve the public interest by acting as those we represent.

We provide a voice in the marketplace of ideas that aid informed public debate.

HONESTY

We adhere to the highest standards of accuracy and truth in advancing the interests of those we represent and in communicating with the public.

EXPERTISE

We acquire and responsibly use specialized knowledge experience.

We advance the profession through continued professional development, research, and education.

We build mutual understanding, credibility, and relationships among a wide array of institutions and audiences.

INDEPENDENCE

We provide objective counsel to those we represent.

We are accountable for our actions.

LOYALTY

We are faithful to those we represent, while honoring our obligation to serve the public interest.

FAIRNESS

We deal fairly with clients, employers, competitors, peers, vendors, the media, and the general public.

We respect all opinions and support the right of free expression.

Copyright Clearance Center

There is a “one-stop” Web site that allows you to get permission to use copyrighted material at:

http://www.copyright.com/

Copyright

Creative works are protected by copyright for 70 years after the death of the author/creator for individual works and 95 years after first publication for corporations

Exceptions: Public Domain

Old material with no active copyright Fair Use

Use of brief section of material for educational purposes

What Is Fair Use?

Any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from

the copyright owner.

Measuring Fair Use

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. There is some inconsistency in judge rulings, so

use caution Judges use four factors in resolving fair use

disputes.

The Four Factors

The four factors judges consider are: 1. The purpose and character of your use

2. The nature of the copyrighted work

3. The amount and substantiality of the portion taken, and

4. The effect of the use upon the potential market.

1. The Transformative Factor:

Transformative Factor = The Purpose and Character of Your Use

In a 1994 case, the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new, or merely copied verbatim into another work.

The Transformative Factor

When taking portions of copyrighted work, ask yourself the following questions: Has the material you have taken from the original

work been transformed by adding new expression or meaning?

Was value added to the original by creating new information, new aesthetics, new insights and understandings?

The Transformative Factor

In a parody, for example, the parodist transforms the original by holding it up to ridicule.

Purposes such as scholarship, research or education may also qualify as transformative uses because the work is the subject of review or commentary.

2. The Nature of the Copyrighted Work

Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels.

The Nature of the Copyrighted Work

In addition, you will have a stronger case of fair use if the material copied is from a published work than an unpublished work. The scope of fair use is narrower for unpublished

works because an author has the right to control the first public appearance of his expression.

3. The Amount and Substantiality of the Portion Taken

The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a

work, your copying will not be a fair use if the portion taken is the "heart" of the work.

In other words, you are more likely to run into problems if you take the most memorable aspect of a work.

The Amount and Substantiality of the Portion Taken

For example, it would not probably not be a fair use to copy the opening guitar riff and the words "I can't get no satisfaction" from the song, "Satisfaction."

4. The Effect of the Use Upon the Potential Market

Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work.

Depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.

The Effect of the Use Upon the Potential Market

Since public relations campaigns are often associated with generating publicity for commercial purposes, this fourth factor is particularly relevant

If you make money from it, you will have a difficult time applying the “fair use” argument

What If You Acknowledge the Source Material?

Some people mistakenly believe it's permissible to use a work (or portion of it) if an acknowledgment is provided. For example, they believe it's okay to use a

photograph in a magazine as long as the name of the photographer is included. This is not true.

What If You Acknowledge the Source Material?

Acknowledgment of the source material (such as citing the photographer) may be a consideration in a fair use determination, but it will not protect against a claim of infringement.

When in doubt, the most prudent course may be to seek permission of the copyright owner.

Does It Help to Use a Disclaimer?

A disclaimer is a statement that "disassociates" your work from the work that you have borrowed. For example, if you write an unauthorized

biography of Mickey Mouse, you may include a disclaimer such as "This book is not associated with or endorsed by the Walt Disney Company. " Will it help your position if you use a disclaimer?

Disclaimers

In close cases where the court is having a difficult time making a fair use determination, a prominently placed disclaimer may have a positive effect on the way the court perceives your use. However, a disclaimer by itself generally will not

help. That is, if the fair use factors weigh against you, the disclaimer won't make any difference.

Disclaimers

For example, in a case involving a "Seinfeld" trivia book, the publisher included a disclaimer that the book "has not been approved or licensed by any entity involved in creating or producing Seinfeld. " Despite the disclaimer, the court held that the use

of the "Seinfeld" materials was an infringement, not a fair use.

The Four Factors

These factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis.

In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.

Sample case

A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death.

Not a fair use

Important factors: The court felt that the portions taken were substantial and part of the "heart" of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982).)

Sample case

The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography.

Fair use

Important factors: A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)

Sample case

A television station's news broadcast used 30 seconds from a four-minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny.

Not a fair use

Important factors: The use was commercial, took the heart of the work and affected the copyright owner's ability to market the video. ( Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).)

Sample case

A poster of a "church quilt" was used in the background of a television series for 27 seconds.

Not a fair use

Important factors: The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)

Sample case

A search engine creates small reproductions (“thumbnails”) of images and places them on its own website (known as “in-lining”).

Fair Use

Important Factors. The thumbnails were much smaller and of much poorer quality than the original photos and served to index the images and help the public access them.

This did not undermine the potential market for the sale or licensing of those images. (Kelly v. Arriba-Soft, 03 C.D.O.S. 5888 (9th Cir. 2003).)

Sample case

A person running for political office used 15 seconds of his opponent's campaign song in a political ad.

Fair use

Important factors: A small portion of the song was used and the purpose was for purposes of political debate. (Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978).)

Sample case

A television film crew, covering an Italian festival in Manhattan, recorded a band playing a portion of a copyrighted song "Dove sta Zaza." The music was replayed during a news broadcast.

Fair use

Important factors: Only a portion of the song was used, it was incidental to the news event and did not result in any actual damage to the composer or to the market for the work. ( Italian Book Corp, v. American Broadcasting Co., 458 F. Supp. 65 (S.D. N.Y. 1978).)

Sample case

The rap group 2 Live Crew borrowed the opening musical tag and the words (but not the melody) from the first line of the song "Pretty Woman" ("Oh, pretty woman, walking down the street "). The rest of the lyrics and the music were different.

Fair use Important factors: The group's use was

transformative and borrowed only a small portion of the "Pretty Woman" song.

The 2 Live Crew version was essentially a different piece of music and the only similarity was a brief musical opening part and the opening line.

(Note: The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher who did not want "Pretty Woman" used in a rap song.) (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)

Sample case

Comedians on the late-night television show "Saturday Night Live" parodied the song "I Love New York" using the words "I Love Sodom." Only the words "I Love" and four musical notes were taken from the original work.

Fair use

Important factors: The "Saturday Night Live" version of the jingle did not compete with or detract from the original song. (Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D. N.Y.), aff'd 632 F.2d 252 (2d Cir. 1980).)

Sample case

A movie company used a photo of a naked pregnant woman and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine.

Fair use

Important factors: The movie company's use was transformative because it imitated the photographer's style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)

Trademarks

Trademarks = an organization’s name, product, slogan or manufacturing process

Companies are very particular about how they are referenced or used

In particular, some companies are afraid of a trademark being diluted due to misuse

Trademarks

Band-aid Google Kleenex Xerox Post-It

Jell-O Tivo Walkman I-pod Ziploc