LEGAL ISSUES FORNON-FICTION PUBLISHERS

Applying 20th 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»“Actual 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?

• “I 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

• “Undercover” reporting vs. non-identification of media afflilation or purpose

Intellectual Property

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

• Think “BRAND”

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 “author” in an “original work” that is “fixed in tangible form” or “persistent medium,” either draft or final product. Does not protect mere ideas, or “functional characteristics.”

• Unless “work” is “work for hire,” copyright is automatically conferred by law on “creator,” also known as “author,” at moment of “fixation.”

Rights in the Copyright Bundle

• To produce a copy of work in same or different medium

• To make “derivative works” based on the work

• 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

“Moral rights”

Right to be identified as the author and credited with the creation of the work, not the same as “copyright”

Moral rights can be disclaimed. Content suppliers 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 FREE

STUFF!• Because people think stuff without © is

copyright-free, using © or Copyright [your name here](Year of Creation) is a Best Practice. But beware of thinking works with no notice are copyright-free.

Copyright, cont.

The registration of copyright in a work is not necessary to stake a claim of ownership.

• www.loc.gov Forms, fees, deposit requirements, searchable index of authors and 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 deems appropriate (geography or time limits, for example)

Note: “Fair use” is a “license” granted by law. Four factors must be analyzed case-by-case to determine if a use is “fair.”

Another right or license granted by law? What is “work for hire?”

* A work “prepared by an employee within the scope of his or her employment”

OR

* A specially ordered or commissioned work created as contribution, translation, supplement, or compilation AND parties have signed a written agreement to that effect

Flash Point

• Journalism Avenue meets Business Law Street right here: The relationship between the publisher and the content supplier:

»Who owns what and how do you know?

»Who is liable for what mistake or misconduct and how do you know?

Types of Legal Relationships between publisher and content supplier

• Employee

• Independent contractor

• Unpaid Volunteer?

Employees

• “Staff” with “jobs” and “job descriptions” and “duties” and “paychecks”

• Employer owns their works

• Employer owes FICA, etc.

Independent Contractor

• “stringer,” “freelancer,” “correspondent”• Must have a written contract or you risk

classification as “employee”• Language is different: you don’t “hire”

them, they don’t have a “job” or “position”• You don’t train them, you don’t supervise

them, you don’t instruct them, they are not integrated into your operation, you do not have 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 reimbursed

Not 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 (“FLSA”) means to you:

• Covers workers “employed by an employer”

• “employ”: “to suffer or permit to work”

• Requires minimum wage per hour and time-and-a-half overtime pay, unless employee is “exempt”

Exemptions

Depend mostly on worker pay and nature of job duties

Pay: at least $455/week salary, paid no matter the quantity or quality of work)

Job duties: Three main classes of exempt employees: “professional,” “executive,”“bona 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 and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.

Volunteer, Cont’d:

• Law does not contemplate workers volunteering services to for-profit private sector employers.

• People may volunteer services to non-profit

private sector entities and to public agencies, but not to do the same work for which they are employed for pay.

Possible approaches to the “no volunteers” rule

• Non-profit corporation is publisher

• No regular or continuing work-like relationship, no “assignments”

• Language adjustments: not “contributors,” but “members,” or “reader-writers” or “network” or “sources”

Special protections for electronic publishers: The Law is in Motion

• Communications Decency Act (CDA)

ISP is not “publisher” of content supplied by others

Continuum between pure “bulletin board” and content provided by news media employees

• Digital Millennium Copyright Act (DMCA)Takedown notices and counter-notices