Author: Chip Stewart

Update: The post below led to a research project regarding fair use and photographs taken from social networks and used for news purposes. The results largely confirmed the suspicions of this post, that using a photo is not fair use, with some exceptions. The article was published in the Journal of Telecommunications and High Technology Law in 2012, and a full, free, downloadable version is available here: http://www.jthtl.org/content/articles/V10I1/JTHTLv10i1_Stewart.PDF

It's a question I've heard from our student newsroom twice in the past couple of weeks, and I've heard some chatter on Twitter on it as well from @hartzog, @derigansilver and @johnrobinson.  "Can I use this photo I found on facebook in my news story?"

The scenario usually unfolds like this:  A story breaks on a relatively unknown person, and without a mug shot or an AP wire photo available, intrepid reporters turn to facebook or MySpace for photos of this person.  Sound familiar?  If you remember Eliot Spitzer's  (ahem) friend  from the high-end prostitution ring from a couple of years ago, or the red-haired Russian spy more recently, the first photos you saw of them were, most likely, from MySpace (in the case of Ashley Dupre) or facebook (in the case of Anna Chapman) accounts.

I'm going to guess that the reporters who dug up these photos didn't get them through a publicist or ask for, much less receive, any permission to publish them.  This approach comes from the classic Internet  culture of "I found it online, and it's free, so I must be able to use it."  And that worked out so well for Napster, right?

Two issues come up in this scenario – one legal, one ethical.  Legally, I see a huge copyright issue here.  Whoever took that photo has a copyright in it, attaching the moment the photo button was pushed.  It's an original work of authorship in a fixed medium of expression.  The copyright act couldn't be clearer on this.

The question is, does it just become public domain by virtue of being posted on facebook?  Of course not.  If you put up a photo of your lost dog on a coffee shop bulletin board, does that photo become public domain, able to be used anywhere by any person who wants to grab it?   If you leave a photo album on your coffee table, can any guest to your home borrow a photo and use it for whatever purposes they want?

So, moving online, is that unfortunate photo of you in the sombrero from college tagged on someone else's facebook account fair game for use by anyone – friend or otherwise – who can access it?   Perhaps they could make a nice greeting card from it?

And I don't think this qualifies as fair use either.  A use for news purposes would meet the first threshold for review under fair use guidelines, but under the four-part balancing test applied by courts in looking at fair use, I don't see how any one favors the republisher:  The use is for-profit, the entire photo is used, it most likely is a significant element of the news story, and it harms the market for the original copyright owner by giving away for free what the owner could legally sell.

So how, you may ask, did the photos of Ashley Dupre and Anna Chapman wind up with news stories about them?  Chances are, reporters grabbed and posted, and nobody asked any questions afterward.

Think about this:  What if someone had?  What if the people in these photos, or the people who took them, felt wronged about the use of their facebook photos?  What remedies would they have?

Invasion of privacy is, most likely, not an option.  As you probably know by now, you don't have any reasonable expectation of privacy in photos or statements made on the Web.  It's a bit like posting the lost dog poster in the coffee shop or putting out your photos on the coffee table – you give up your right to claim intrusion when you invite public people to see them.  As my privacy-expert friend Woody Hartzog points out, you may have a (warning, legal jargon ahead) promissory estoppel claim through facebook's Terms of Service – that is, friends promise not to violate others' copyrights (see the Terms of Service, Part 5, first item) as a term of signing on to facebook, and breaking that promise means one could be liable for damages incurred as a result of that violation.  The MySpace terms present a similar quandary.

[For what it's worth, the facebook Terms of Service DO allow facebook a "non-exclusive, transferable, sub-licensable, royalty-free, worldwide license" to use the photos you upload.  These do not carry over to all users, of course.  But creepy, eh?]

But that's not the strongest argument.  If the person whose photo was used wants to make your life miserable, he or she could make an easy copyright infringement case against you.  All they'd have to do is find the friend who took the photo, ask him or her to file for a copyright on it, then go to federal court and ask a judge for damages.  Minimum statutory damages are $750 per violation, but I could see a photo that gains widespread attention bringing in more than that.  Why shouldn't the person who took that photo be entitled to the same kind of protection that, say, a professional photographer should if somebody used his or her work without paying for it?

I'm not saying this is the most likely scenario.  The easiest remedy for someone to take to remove a photo from unlawful republication would be to issue a takedown notice to the ISP under the Digital Millennium Copyright Act.  But that won't make them any money, nor will it satisfy their lust for revenge. 

People who feel hurt will find ways to hurt you back, and they have all the legal rights they need if you violate their copyright by reposting a photo.   So don't do it.

Instead, take the easy and obvious route:  Ask permission.  Get it in writing (keep your email messages).  Only reprint when you know the copyright holder has consented.  And if you can't get that consent – it's probably a good thing you didn't publish it, right?

Onto the ethical ramifications here.  While facebook users may not have any privacy rights guaranteed by the law, they do have reasonable belief that the service is to share their information with friends.   As a journalist, would you have any ethical issues with rifling through the photo album of a citizen after he or she had been arrested or implicated in some huge news?  Consider the following from the SPJ Code of Ethics:

"Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention.  Only an overriding public need can justify intrusion into anyone's privacy."

And:

"Show good taste.  Avoid pandering to lurid curiosity."

Consider the photos of Ashley Dupre in a bikini.  Is there overriding public need for this information?  Or is this pandering to lurid curiosity?

In short, facebook photos aren't posted with the intent of becoming public domain and usable for any purpose, news or otherwise.  Journalists should know better.  And for those who don't, some day, the hammer will come down.  I tell my students, "don't let this be you."  I offer the same advice to journalists everywhere.

Yes, a school district is allowed, and very likely should be required under the Public Information Act, to release information about student transfers as long as it does not release information with individually identifiable information about students.

Educational records generally are exempt from disclosure under the Texas Public Information Act [Texas Gov’t Code § 552.026].  The Texas act defers to the federal Family Educational Rights and Privacy Act [20 U.S.C. § Sec . 1232] when it comes to handling of student records.  Thus, federal law and policy govern release of records from educational institutions.

Federal regulations make it clear that information may be released without violating FERPA if all personally identifiable information has been removed from the record to protect student privacy [34 CFR 99.61].  Release of aggregate data, such as the number of student transfers in a school district, would be permissible without violating FERPA as long as any specific references to student names were removed.

Under policy of the Texas Education Agency, records and data of student transfers must be reported to this state agency, which keeps a database of student information.  The agency is a “government body” under the Texas PIA, so its records are open to the public as long as they do not conflict with FERPA or fall under any exemptions.

While courts and the attorney general have not clarified what qualifies as an “educational record,” administrative information about school district policy and aggregate data that does not identify students should be open under the general policy of openness at the heart of the Public Information Act. 

Requesters should consider all avenues to get the information they need.  In this instance, one should not only ask the school district for answers, but also should request aggregate data from the Texas Education Agency, which has public information request guidelines in place (http://ritter.tea.state.tx.us/gir/PublicInfoMain.html) and may be able to answer queries such as this more quickly.

The Texas Open Meetings Act (Texas Local Gov’t Code section 551.001 et seq.) requires that meetings of government bodies be open unless a certain exception in the act applies.  These exceptions include consultation with its attorney about “pending or contemplated litigation” [Texas Local Gov’t Code section 551.071(1)(A)], discussions about purchasing property if it may adversely affect bargaining position [Texas Local Gov’t Code section 551.073], and certain personnel matters [Texas Local Gov’t Code section 551.074].

Notice of the reason for going into closed session must be given at least 72 hours in advance of the meeting [Texas Local Gov’t Code sections 551.041 and 551.043].  The Texas Supreme Court has said that the Open Meetings Act requires more than bare listings of “personnel” or “litigation” on the notice posted.  Rather, the court requires that the notice “should specifically disclose the subjects to be considered at the upcoming meeting.” [Cox Enterprises, Inc. v. Board of Trustees, 706 S.W.2d 956, 959 (Texas 1986)].  Examples the court gave were as follows:

• Selection of a new school superintendent is not in the same category as ordinary personnel matters — and a label like “personnel” fails as a description of that subject.
• Similarly, a major desegregation lawsuit which has occupied the Board’s time for a number of years, and whose effect will be felt for years to come, is not in the same category as the more common “litigation” which a school board may expect to face. Certainly, a school board is not expected to disclose its litigation strategy, but it cannot totally conceal that a pending desegregation lawsuit will be discussed. [706 S.W.2d at 959]

Beyond that, however, the Texas Supreme Court and the Attorney General have not given much guidance about how much information a government body must disclose. 

If a government body announces on its agenda that it plans to go into closed session, but gives no more detail than “personnel matters” or “litigation,” citizens and journalists should push to ask for more information about the reason for going into closed session.  Further, they can steer reluctant government employees to the Attorney General’s Open Meetings Act Handbook (2010 edition now available at http://www.oag.state.tx.us/AG_Publications/pdfs/openmeeting_hb.pdf; information relevant to this question is on pages 22-25), which also calls for more detailed information in meeting notices.

If the government body still refuses to provide more detail for its closed sessions, citizens and journalists should seek the assistance of an attorney to consider legal remedies.  A court may declare actions taken with improper notice void [Texas Local Gov’t Code section 551.141], or it may be able to issue an injunction to “reverse a violation or threatened violation” of the Open Meetings Act [Texas Local Gov’t Code section 551.142].

Newspapers and other print media have no legal duty to publish the name of any author or source.  Publishers have broad discretion to make decisions about what to print.  The U.S. Supreme Court has recognized the importance of such editorial discretion in ensuring the First Amendment guarantee of freedom of the press:

“A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment.” [from Chief Justice Burger’s opinion in the unanimous decision in Miami Herald v. Tornillo, 418 U.S. 241, 258 (1974)]

There may, however, be ethical obligations to consider — for example, the Society of Professional Journalists Code of Ethics says journalists should:

“Identify sources whenever feasible. The public is entitled to as much information as possible on sources’ reliability.”

One other consideration is what happens if an unattributed statement or anonymous author becomes the subject of a defamation lawsuit or is relevant to a criminal investigation.  Then, a news organization may have to identify the source or author.  This is mostly about identifying witnesses or suspects in the service of the legal process (so police can identify criminal suspects or so a plaintiff can make his or her case and can properly name potential defendants).  A publisher who refuses to identify an author or source when a judge issues a subpoena demanding such a release will likely be held in contempt of court.  Texas, of course, recently passed a reporter shield law to make it harder for prosecutors and plaintiffs to force journalists to divulge confidential sources (see Texas Civil Practice & Remedies Code § 22.021 et. seq.)  Congress is considering a similar law that would apply in federal courts (see H.R. 985 and S. 448).

The Texas Public Information Act makes it very clear that the salaries of public employees are “public information and not excepted from disclosure” [Texas Local Gov’t Code §552.022(a)] under the act. Specifically, in the section defining categories of information that are public, included are “the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a government body”. [Texas Local Gov’t Code §552.022(a)(2)]

A city employee is, of course, an employee of “a municipal governing body in the state,” and is thus subject to the Public Information Act [Texas Local Gov’t Code §552.003(A)(iii)]

The only exception to the categories of public information in §552.022(a) is for records that are “expressly confidential under other law.” No privacy laws specifically make public employee salaries confidential. In fact, the confidentiality exception in 552.022(a) is very narrow; in one hotly-debated example, the Texas Supreme Court construed the confidentiality exception to include reports compiled for ongoing litigation, which are privileged under the Texas Rules of Civil Procedure [see In re City of Georgetown, 53 S.W.3d 328 (2001)].

In that case, current Attorney General Greg Abbott was serving as one of the court’s justices, and he made a telling statement in his dissenting opinion. He disagreed that 552.022(a) should be extended even this far, instead suggesting that the items in this section (which includes public employee salaries) were intended “to create a set of ‘super public’ categories of information to which” other exceptions should not apply. [53 S.W.3d at 341]

The reasoning behind this is obvious. As taxpayers, we fund our government’s activities. It is our business how much our government spends our tax dollars, including how it pays its employees. Nearly every state makes public employee salaries open to inspection, either in the state’s freedom of information laws or through court decisions regarding the law (as was the case in California in 2007, when the state’s supreme court interpreted the Public Records Act to include employee salaries; see International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court of Alameda County).

On occasion, government employees bristle at this level of openness, particularly when lists of employees’ names and salaries are posted on the Web. In Maine, for example, a bill was introduced in the legislature in April that would make employee salaries confidential, largely in response to a database posted by MaineOpenGov.org. That bill never reached a vote; it was killed unanimously by the legislature’s judiciary committee shortly after the bill was introduced.

If a government body in Texas is denying access to public employee salaries, it must provide a specific confidentiality provision recognized under Texas law that would serve as an exception to the general rule that this information is open under the Texas Public Information Act. If denied on confidentiality grounds, requesters should be sure to ask for the specific code, chapter and section of state law that the government body is relying on as an exception to 552.022(a); a bare assertion of “personal privacy” should not deter this request for information that is specifically deemed open to inspection under Texas law.