Category: Ask an Expert Questions and Answers

Question: I asked a city councilman what he and the rest of the board discussed in closed-door session (executive session). He said he could not by law comment, that the law prevented him from disclosing what was said. I told him that he could comment and that there was no law preventing him from telling me what was discussed as per the Texas Attorney General Opinion on the matter. Am I wrong? Has something changed?

Answer:  No. You’re not wrong. The city councilman was misinformed. The records of what happened may be closed, but individuals in the meeting are free to disclose what happened. There are some privacy issues to consider if the topic of the meeting was a personnel issue, but to ban a participant from talking about the meeting would violate the First Amendment.

Question: We need to check the immigration status of someone who has been convicted of a crime.  We want to find out if he currently has a green card or if his green card has been revoked as a result of the sentence. How do we find this out?

Answer: Immigration status is not public record, even at citizenship ceremonies. The ceremonies are open to the public but the names of the new citizens are not public record. Even at ceremonies where names are announced in public, those people have probably agreed to that beforehand and they were special applicants, like a foreign-born sports star or a war veteran whose naturalization had been made a symbolic cause celebre by United States Citizenship and Immigration Service. Generally speaking, the only time immigration status can be publicly released is after the person is deceased and only if their status has no bearing on living relatives. (Thanks to Mark Horvit, executive director of Investigative Reporters and Editors, for supplying this answer.)

Q:  We are doing a feature this week on the history of Rudolph the Red Nosed Reindeer. (actually pretty interesting… another marketing ploy by corporate giant) Anyway, I am thought I might scan in the cover of a little Golden Book about the flying mammal and use it as my artwork for the story. The book is copyright 1958 and has been out of print for years. Am I trudging on infringement issues?

A:  First, it’s good that you stop to ask.  Often, news staffs scan and use without even giving a second thought to copyright issues, simply presuming that if it can be found, then it is fair use.  This is not always the case, of course, and that’s when the Copyright Scrooges can come calling.

Chances are that the image is not in the public domain.  Even though it was published in 1958, if long as Little Golden Books renewed the copyright after its first term would’ve expired in 1986, the copyright would extend to 95 years after the original publication date.  That’s the rule for works published between 1920 and 1963; today, copyright extends to 70 years after the death of the author. (see a full list of copyright duration here:  http://copyright.cornell.edu/resources/publicdomain.cfm)

In this instance, however, I think printing the Rudolph cover would qualify as fair use.  Fair use is the chief exception under U.S. copyright law, which calls for penalties including $750 minimum and up to $150,000 in damages per infringing use.  Worse than a lump of coal, indeed.

To qualify for fair use consideration, the use must fall into one of the following categories:  criticism, comment, news reporting, teaching, scholarship and research.  Because you would be using the Rudolph image for news reporting purposes, you are at least eligible for the fair use exception.  However, this alone does not mean the use is fair.

Courts apply a four-part test to gauge whether the use is fair.  No one part of the test is supposed to be given any greater weight than the other; rather, courts apply the test on a case-by-case basis and provide an overall ruling based on the facts and circumstances.  The test includes the following: (1) purpose of the secondary use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion taken and the secondary use, and (4) effect on market value of the original.

In the case of the Rudolph cover, the test would apply as follows:

1. Purpose of the secondary use:  News uses are for profit, which favors the copyright holder.  However, the fact that the original is out of print helps the secondary user because you are making it available to a wider audience.
2. Nature of the copyright work:  Rudolph is without a doubt fictional and fanciful, which is more creative than historical or factual works.  This favors the original copyright holder.
3. Amount and substantiality:  This kind of depends on how the copyright was registered.  Was it done as a whole, or was the cover image registered separately?  Most likely, it was registered as a whole, meaning you’re using just one image (albeit the most important one) from dozens in the book.  It’s hard to use images fairly without “transforming” them somehow – using them in a photo illustration, for example – because it usually requires taking the whole image.  Using the photo in a de minimis way – as a small image accompanying a longer story, with other images from other sources as well – would help the news reporting use even more.  This factor also slightly favors the copyright holder.
4. Effect on market value:  Essentially zero, which favors the secondary use.  It’s not plausible to believe that people would substitute the newsprint image for the original, thus undercutting sales of the book.

Though courts are not supposed to favor any one factor, they often do focus on amount and substantiality and effect on the market.  Here, with no negative market effects, and with only one image from the book taken, these factors seem to favor the secondary use.  The fact that the book is out of print helps as well.

Thus, I think this use would qualify as fair.  To be safe, however, I encourage attributing to the original work – under the image, I suggest listing the name of the artist, the title of the book, the publisher and the date.  Such acts of good faith – you’re giving credit to the original artist and publisher to the audience, rather than hiding them – tend to be appreciated by the courts. Think of it as a way of staying on the “nice” list.

For more information on copyright, go to www.copyright.gov, which is full of resources and FAQs for the public.

Question: Under the Open Meetings Act, what can I do if a government body goes into executive session under a vague “personnel matters” exception every meeting, even if the body is doing other things such as receiving reports or discussing other matters about high-level government employees during this closed session?

Answer: First, to be clear, a government body can go into executive session to discuss personnel matters (551.074). To comply with the notice requirements under 551.001, the government body must (a) meet in open session and announce that a closed session will be held and (b) state the exception under which the body is going into executive session. So, technically, a city council that meets in open session and states that it will be going into closed session to discuss personnel matters – without any further detail – is complying with the notice part of the Open Meetings Act.

While some government bodies voluntarily disclose which personnel are being discussed or otherwise provide more detail, there is nothing in the statute or court/attorney general rulings demanding that government bodies provide more clarity, except in cases involving a “special public interest.” Texas courts have only required more than “employment of personnel” for hiring decisions when such a “special public interest” is involved (for example, courts required more for school boards hiring principles or superintendents; see Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, Texas Supreme Court, 1986).

Thus, hiring and firing of high-level personnel – perhaps including city managers and tax assessors/collectors – would seem to require an additional level of notice beyond merely stating “personnel matters.”

However, the “personnel matters” exception does not cover anything dealing with government personnel. Under 551.074(a)(1), the only personnel discussions that can be closed are sessions “to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal” of a public employee. So, if the body is receiving a report about the aforementioned matters – particularly, say, an audit or investigation about a public employee – that portion of the meeting can be closed.

That said, the personnel matters exception can be (and surely often is) abused. If a government body is trying to dodge public scrutiny by wrongfully hiding behind an exception, it is in violation of the Open Meetings Act. If you hear that matters have been discussed besides those claimed as the reason for meeting in closed session, then you can challenge the validity of closing the meeting in court.

Proceedings of closed sessions must be recorded, either through video/audio recording or through a certified agenda that includes details about any business conducted during the closed session (551.103(a)] This includes at least a brief summary of the subject matter discussed and any actions taken.

Unfortunately, there is no way for you to gain access to the recording or the certified agenda without court intervention – a court can conduct in camera review of the recording/agenda and can admit it into evidence if the case proceeds. I would normally suggest that you seek a friendly member of the board to leak you a copy, but doing so is a misdemeanor.

To be clear, the closed session on personnel matters is only for deliberation, not for final votes and decisions, which must be made on the record. Any final decisions made regarding the public employee (or final decision on any other issue, for that matter) must be made in open session.

Question– Our folks in this town always want to run an ad for one week and expect people to beat their door down. Also, I hear "advertising doesn't work" all the time from many businesses. I am armed with some counter responses, but can you could briefly give me a few extra ideas I could use?

Answer: Before I answer your question, allow me to reiterate some points that will frame my answer for you. As you may know, many of these points I have discussed and outlined in depth during my past TCCJ visits and workshops.

When business is tough to get, it’s very easy for small businesses to look for a quick fix to their sales slowdown. In responding to their anxieties (and fears?), don’t forget that part of your selling job is also educational in nature. It’s important to remind and teach your advertisers and potential advertisers some key marketing and advertising strategies to be successful, particularly in these challenging economic times.

First and foremost, teach your small retailer/service provider/business that they need to maintain a constant awareness in their marketplace (e.g., your community) of “who they are” and “what they do.” This can NOT be achieved with a one-time ad or coupon. A consistent marketing strategy is the only strategy to achieve long-term success and growth.

When you are meeting with your client, carefully outline the strategy and benefits of an advertising campaign (e.g. a series of ads, within a timeframe, with a fixed or allocated budget, to meet an identified need, problem or opportunity, with a desired outcome).

Remind your client that an advertising campaign is an investment in their business. To drive home this point, you should no longer accept one-time ads.  Tell your client that one-time ads are an unproven expense (e.g., your clients are correct.  One-time advertising does not work!), but an advertising campaign is a long-term investment that will generate results for their business.

Once your client understands and accepts this advertising and marketing strategy, you should clarify two points before the campaign begins:  Clients should have a clear understanding of how their business will support the campaign and what are their expectations of the advertising campaign.

Encourage your clients to explore a number of options they can do to support the campaign. Suggest they prominently display signs, brochures and reminders throughout their store or office that ties into their print and online advertising campaign.

Recommend they consider ordering more of the advertised merchandise (sizes, colors, styles), strategize with them about relocating a merchandise display to a prime location in their store, and last but not least, be sure you coach them about the importance of telling and teaching their employees about the campaign and the best way to maximize selling opportunities when they are face to face with a potential customer.

In regard to expectations, your client may take 1 percent of your newspaper’s audience (print and outline) or readership figures (Remember it’s all about audience, not circulation numbers. Numbers buy nothing!) and tell you that’s what they expect in their place of business the day of and a few days after their advertising campaign.

It’s at this time, when they are outlining their expectations, that you will have a teachable moment! Acknowledge that you heard your client’s expectations and share with them that they may be a little optimistic for immediate results for a long term advertising investment.

Begin your teachable moment by reminding your client that there are a very small number of buyers in the market at any one time. Buyers come in and go out of the marketplace when they plan purchases, make unplanned purchases or postpone purchases.

When your clients begin their advertising campaign, reinforce again and again that the campaign is accomplishing a number of benefits to their business that may not be readily noticeable or produce immediate sales.

Yes, advertising offers a service or product for sale to buyers in the marketplace at that time. But that same advertising also builds “top-of-mind awareness” for their business or service. When an individual becomes a buyer in the future, this “top-of-mind awareness” will be recalled by the potential buyer because of that ad campaign.  That potential buyer then has a higher likelihood a becoming a customer of your client’s business.

In addition to immediate sales and building top-of-mind awareness, the same advertising campaign reinforces past purchases and buyer decisions of current and past customers, encouraging them to visit your client’s business or service again.

Two more benefits of the same advertising campaign should be discussed with your client. Review other ads in your paper or on your newspaper’s web site and show that other businesses’ advertising campaigns talk to the community, show their support of the community, and demonstrate their commitment to the community. Your clients will accomplish the same with their advertising campaign.

Their campaign also allows your client to talk to her current employees, who see the advertising campaign and share it with others (“I work there, it’s a great place!”) and future employees (“I see their ads all the time, they have some great merchandise. I would love to work there!”).

Late next week on my TCCJ blog I will post some methods you can utilize to teach your advertisers, retailers, service providers and small business to track their advertising and measure its results.

In closing, remember that when business is tough to get, anxieties build. They build for your advertisers and potential advertisers (e.g., sales) and they build for you (e.g., revenue for you and your newspaper).

Minimize those anxieties of both parties by acknowledging that a major component of your selling experience is educating your existing and potential clients. The more they know about the strategic opportunities your newspaper products offer for their business or service, the more successful they can be in their print and online advertising.

The more you know about an advertiser’s or potential advertiser’s business or service, the more you can assist them in being successful.

Be patient.  Ask for their business when the best opportunity presents itself. But remember that you must present yourself as a business consultant to them, not an ad salesperson for your newspaper.  Your job is to make them successful – to make money for your clients by helping them implement a well-thought-out, clearly defined advertising campaign.

You can do this … you know you can! Good luck and have fun!

Full question: A 501(c)(3) foundation publishes a travel guide that my newspaper designs and prints. The foundation has prevented some businesses from advertising because of bad business histories. Now a disgruntled former advertiser is threatening a lawsuit because he says he is not being treated equally by being prevented from advertising. Does a private business – non-profit or otherwise – have the right to refuse business to anyone?

A private business is allowed to make its own editorial decisions about what to publish. The First Amendment right to freedom of the press prevents the state from interfering with private editorial decision-making, as was made clear in the Miami Herald Publishing Co. v. Tornillo case, 418 U.S. 241 (1974).

This includes the right to turn away advertisements, as the Supreme Court noted in a decision the previous year when it refused to extend the FCC’s “Fairness Doctrine” to broadcast advertising. (CBS v. Democratic National Committee, 412 U.S. 94, 1973).

Consider recent instances of networks broadcasting the Super Bowl — they regularly turn away ads from political groups such as MoveOn.org or anything else deemed too racy for the public, such as PETA’s regular attempts to grab attention.

Merely by virtue of being a 501(c)(3), not-for-profit organizations do not surrender their First Amendment rights. Just last year, the Supreme Court in the Citizens United v. FEC case upheld free speech rights for 501(c)(4) tax-exempt organizations, striking down campaign finance regulations that limited the ability of the organization to spend money in political campaigns, a kind of speech.

In short, with very few exceptions, publishers have a right under the First Amendment to make editorial decisions without the state, or the courts, interfering with them. This includes the right to choose which advertisements to accept and which to reject. While the contents of advertising can be regulated — consider the Fair Housing Act requirements that advertising not include discriminatory content — it remains in the publisher’s discretion whether to publish an advertisement in the first place.

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.