SEPTEMBER 2018: LEGAL TIPS FOR A SUCCESSFUL SCHOOL YEAR

By Madison Dudley

When students accuse administrators of censorship it puts advisers in a sticky situation. Many want to help their students but can’t because of their status as a school employee. employee. Student newsrooms are also being financially squeezed by the emergence of  copyright traps, where a photo grabbed online in violation of copyright can cost student news organizations hundreds of dollars in penalties. SPLC attorneys Mike Hiestand and Sommer Ingram-Deam cover this and more in this month’s podcast.

Madison Dudley: My name is Madison Dudley and I am a reporter at the Student Press Law Center. This episode we’re going to go over legal tips and steps you should be taking at the beginning of the school year to protect yourself and your newsroom. From confidential sources to cyber copyright traps, the SPLC has you covered on what to know and how to plan for sticky situations.

Sommer Ingram-Dean: Hi everyone, thank you for joining us. My name is Sommer Ingram Dean and I am the staff attorney here at the Student Press Law Center and I am joined by Mike Hiestand our, senior legal consultant.

Mike Hiestand: The number one reason that people have always called us here at the SPLC is censorship. And so what we’re going to talk about today is a what to do when that, you know, when that censorship takes place.

So one of the things that I always tell advisers and students they need to do at the beginning of the year is really kind of get a game plan in place for what happens should censorship or should some other controversy come to your newsroom.

It’s important to talk to your students about if something (censorship) happens you need to understand that I as an adviser am an employee. You know legally, advisers are in the same legal position actually as the principal. They are school officials, they are school administrators and it’s important I think for everyone to understand that. Because when stuff happens and the heat gets turned up, very often you find that those roles do come into play and the adviser is all of a sudden reminded by their principal, by their superintendent that they are an employee and that they need to do their work as an employee, which is unfortunately very often kind of at odds with what an adviser wants to do as an adviser. The adviser is there because they love you. I mean they’re doing work that they believe is important they believe in student voices, they believe in student press and they are on your side, but they’re also an employee and so sometimes those roles can conflict.

In terms of the role of the adviser, when censorship happens it’s always important to know that your students are really the ones that need to take the lead on this. It’s a student publication, it is student voices that are trying to be protected and it’s really important that students understand that if the principal or superintendent comes down and tries to censor the publication, students, not the adviser, again the adviser is an employee, students are the ones that need to take the lead in contesting that censorship. Students need to be the one, you know, when it’s important to make the phone calls to media to let them know what’s happening, students need to be the ones to let parents know. Students need to be the ones to contact the SPLC. You don’t want after a censorship situation has started, you don’t want as an adviser to be telling your students, ‘you need to call the SPLC now’ that can be looked at as insubordination in many cases, you know challenging the school district.

These are things that students need to know now when things are calm so you need to let them know, students need to know that we exist. I’d much rather have you (students) calling me so I could tell you this is what you need to do.

The other thing that students need to realize because I see this happen all the time is that when a censorship situation or some sort of controversy comes into play the adviser is told specifically, and I mean it’s lousy but it happens, the adviser is told don’t tell your students, you know this is something that you need to keep to yourself. ‘Don’t tell your students that I told you this can’t go forward or anything like that’. And so students, advisers are in a lousy situation in that because they are employees they have to sometimes do things they don’t want to do. They are having to keep things from their students and it gets very uncomfortable. So I would much rather that students call me up walk you through what’s worked. We’ve kind of got a pretty good system for how to contest censorship and so we can talk a lot about that.

In terms of students, the number one sort of suggestion that I can have for students is just the importance of practicing good journalism. I mean you know there’s knowing the law and doing a bunch of other things on the list we can get to but beyond everything else, the best sort of censorship protection that you can have and that I just am desperately looking for is good journalism. If you put together a story that you are proud to stand up and defend and take to other media and to make your case, more often than not we are going to have a positive outcome.

Where you are putting out good, competent journalism that you’re proud of, whether it’s published in the student newspaper or whether we take it to some other place, I mean there are means for getting your story out which is the bottom line that is what we are looking to do. But I can only help you with that if your journalism is good.

Before I turn it over to Sommer, who’s going to talk about some copyright issues I’d also talk about kind of the role of, again going back to advisers being employees, just the need of advisers when dealing with confidential sources. We’ve always suggested to students that if you’re looking to work on a story involving confidential sources, confidential information, as sad as it is and it’s certainly nice to talk with advisers with stories like that that are somewhat tricky, it’s really important that you not clue your adviser in as to who you’re source is. Because they are employees they are sometimes in a position, if you tell them something, particularly if it involves illegal conduct.

Perhaps you’ve talked to a student that’s willing to talk to you about a story you’re doing about drug use at school and maybe they are either a drug user at school or they’re selling drugs or something like that. The minute that you tell your adviser that you’re working on this story or that you know who this person is, your adviser very often is going to have a legal obligation to go to her principal or his principal and let them know that I know you know this is happening and place. It’s just a legal obligation that they have. It’s important I think if you’re looking to do that to use confidential sources make sure to keep them out of it. That’s also a good time to maybe give us a call. We can kind of talk to you about some of the nuances and things you want to be thinking about when you’re using confidential sources.

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SID: Thanks Mike. So I just want to focus on a few issues about copyright law that we tend to see frequently here at the SPLC, but first, just a basic question that we get a lot is ‘who owns the copyright to work created by student journalists’ and the answer to that is generally a student will retain the copyright to his own work whether that’s a photograph or a story or a blog post. The student will retain the copyright to that and can exercise all rights of a copyright holder. And that is regardless of whether the student has used their own equipment or school equipment to write their story or produce their multimedia package or whatever that may be. On our website we do have a model copyright agreement that you can have students sign to sort of minimize confusion that may come up in that area and basically that leaves the copyright with the student but it provides sort of what we call a long-term license for the student media organization to use or reprint their story or photo or whatever it may be.

The next thing I want to talk about is something we have been seeing more and more frequently here which are these automatic, or auto-generated copyright infringement notices. So we are seeing situations where copyright owners have gotten creative and they are embedding codes or putting metadata that’s often invisible to the naked eye, into their images or into whatever work it is before it’s uploaded online. Then they are able to use these computer programs and search the internet and find out when their work has been reproduced without their permission. So often times when these programs run and they get a hit on whatever their work is they auto-generate these letters and send them to the copyright infringer.

And so I just think it’s really important for you guys to know that just because you are student media you’re not exempt from that. A lot of times, also, these letters are demanding money. And so I just kind of want to go through some things that you can do to minimize this and obviously you can always contact us by calling us or contacting us through our online legal request form but the first thing you’ll want to do if you receive one of these letters is to just verify if it’s not a scam because those things do happen as well. And once you verify that it’s something that’s accurate and we can also help you with that, probably the first thing you’ll want to do is remove the infringing material. So it can be as simple as taking down the photo from the news site, you know whatever it is that you have been notified that you’re infringing upon. Often times if you remove the material that’s shown as good faith and can work in your favor in the long run.

I won’t go into this into too much depth about this right now but you can also look and see if you have a fair use claim. Fair use is a doctrine that basically if you are using a work in sort of a transformative way then you’re not infringing on copyright, and again that’s something that we can help you determine here at SPLC. The one thing you don’t want to do is ignore the letter. So something we often advise doing is that you can respond in writing, letting the claim know that you are working at a student publication, that you have no money. It’s not a legal defense but it may get them to sort of back down a little bit. And it’s also important to know that even if you do end up having to pay it won’t necessarily be the amount that they’re demanding in the letter.

So a lot of things that we see or a lot of ways that people sort of get caught in this copyright trap is by doing things like simply copying and pasting from the internet or downloading images from Google. It’s important to know that just because it’s available on Google does not mean that you can freely use it. It’s also important to note that just because you give credit to a person or a website for getting your image or quote or whatever from them or that place, that doesn’t mean that you aren’t infringing on that copyright because copyright law is concerned with consent rather than attributing it to whoever you got it from.

So sometimes it can be something as simple as asking for permission to use the image, you can pay for a license, you can look for things that are in the public domain, which are things that are really old like Shakespeare or the Mona Lisa. Things where the copyright has expired

MH: So one thing we are suggesting and its a pain in the behind I know, is now is a good time to do a copyright audit of your website. I mean going back as far as you need to. Going back at least three years, that’s the statute of limitation, but I’d go back ideally like four or five even, but looking for copyrighted images and pulling those things down. If you aren’t absolutely certain that you created the image yourself or that you had permission to use it, pull it down because unfortunately there’s no hiding. They will find out if you are using an image that you don’t have the right to use. I think that’s about it. Just a reminder to make sure to mark our website and keep our contact information handy. So have a wonderful school year and hopefully we don’t hear from you!

MD: This has been the Student Press Law Center podcast, produced here in Washington D.C. The music played was called “On My Way” by Kevin MacLeod. You can learn more about the topics discussed in this podcast at our website, splc.org. You can also find news stories, advice, legal resources, and quizzes. For legal help, visit splc.org/legalhelp. You can follow us on Twitter @SPLC, Instagram @studentpresslawcenter and be sure to like our Facebook page. You can follow me on Twitter @MadisonDudley18. Thanks for listening and we hope you tune in next month!