Sunday, September 11, 2016

Copyright and libel

April 23, 2008

Lecture for my p.m. 343 class today.

Good morning, Professor Jamie.

I’m presuming you will teach my 343 class this afternoon.

Remind them to take notes of key points; helps them learn.

Lecture today focuses on another dimension of First Amendment law–copyright.

First a disclaimer. I am not a lawyer and I don’t play one on TV.

So I don’t claim to be an expert on copyright–a very complex part of First Amendment law.

But I know enough maybe to help all the future professional journalists (or other kinds of communication professionals in our feature writing class.)

A few key points:

1. This lecture is not the end all about copyright law. Everyone in our class needs to read more about copyright in our AP Style book (or in some other reputable source). Everyone can also find an abundance of good info. about copyright on the Web. Do some research. Learn all you can.

2. What is copyright? Basically, it’s a law that protects a person’s intellectual property. If a person writes or creates some sort of expression (photo, graphic, story, sketch...), copyright assures the creator of that expression a certain degree of protection from intellectual theft.

3. When you research or read about copyright law, one word keeps coming up over and over. The word is “PERMISSION.” This means that if you are not sure if something is copyrighted, then it probably is copyrighted! Always, when in doubt as a writer, artist, photographer and you want to borrow someone else’s work for your own use, ask the creator of that work for HIS/HER PERMISSION.

4. Even though you cite the source of expression (that you have lifted from someone else’s work and used for your own purposes), you could still be guilty of copyright infringement, especially if you are somehow being paid money (as in Mad Money) for your writing, graphics, photography or whatever. Again, always best to get PERMISSION OF THE CREATOR OF THE WORK BEFORE YOU LIFT IT FOR YOUR OWN USE.

An exception to the above is if you are researching and writing a paper for a class or course. In that case, if your work is purely for academic reasons and you don’t intend to have it published, you probably don’t need to get permission from the creator of the work you have cited or borrowed. But you definitely need to source it (give the original author credit) in your paper.

5. There’s a common misconception that writing, photography, graphics or other forms of expression have to be accompanied by the copyright symbol (letter C inside a circle) before the expression has copyright protection. Not true! All things written, captured on camera, or sketched are immediately copyrighted!

That said, it is the case that the copyright notice (which you can also have registered with the U.S. Copyright Office) reinforces protection of the creator of the original work. The notice is a caution or reminder to people not to steal or rip off the work without permission of the creator of the work.

6. One big factor that comes into play regarding copyright law is commercial benefit. Are you, through your writing, photography, infographics, sketches, getting paid for that expression? And, if so, does what you claim to be totally your expression (writing, photography, whatever), contain the work of others? Careful if this is the case! You could be found guilty of copyright infringement and pay big money (to the original creator of the expression) in a court of law.

7. There is a little wiggle room in the copyright law. There’s an exemption called fair comment. This means that it’s okay for you to reproduce, without permission of the original creator of the expression, that expression if you are doing an evaluation or critique or review or even a parody of that expression. This helps movie and arts review (books, plays) critics do their thing in the media. But it’s not okay for you, even if you are a critic of some sort, to pass off someone else’s work as your own.

8. Always good to remember that facts and ideas cannot be copyrighted. But the verbatim (precise, exact) expression of those facts and idea are subject to copyright protection.

Example: I write a feature story about the O.J. Simpson murder trial. I note in my story, in my own words, certain facts about that trial such as: it occurred in the early 1990s; Mr. Simpson was accused of murdering two persons–his wife and his wife’s close friend; the two dead persons were found in pools of blood, butchered, on a sidewalk at Mr. Simpson’s home residence in Los Angeles; the jury in this case returned a verdict of not guilty and let Mr. Simpson go free.

On the other hand, if I lift verbatim a passage from another article (about Simpson’s murder trial) written by someone else (whether printed in a newspaper, magazine or from a Web site) and use that in my story (as if I had written that lifted portion), then I am guilty of copyright infringement.

It’s also a common misunderstanding that the amount or extent of text that a person lifts from another person’s writing, without that original creator’s permission, factors into whether a violation of copyright has occurred.

Careful! Courts have ruled that in some instances, even though very few words were stolen from another person’s work, those very few words constitute the heart and soul of the original expression; and thus violation of copyright has occurred. This situation has happened with regard to the words in songs or the musical notes of songs. Very little may have been stolen or borrowed, but it’s still against copyright law.

9. Just because something is on the Web, it’s not free for the taking–UNLESS THE AUTHOR OR CREATOR OF THE WEB SITE STATES EXPLICITLY ON THE WEB SITE THAT MATERIAL ON THE SITE MAY BE USED FREELY FOR WHATEVER PURPOSE.

But again, be careful. If no such statement is on the Web site, the material on the site is copyrighted. We therefore get back to asking for permission to use or borrow.

Bottom line: If you did not create the material you located on a Web site, do not use it without the creator’s permission. Without that permission, you cannot legally use or copy the expression for your own use. Without permission, you are a common, scumbag intellectual, lying, cheating thief who is guilty of copyright infringement!

Some may wonder how they can get caught for stealing work from a Web site. It can happen folks! Big corporations and other entities today have “spiders” (software that scours or crawls the Internet) looking for intellectual property thieves.

Blogging: This is a fairly new phenomenon, in terms of copyright law, but my reading is that while you can blog freely, you should not reproduce or blog someone else’s verbatim expression as your own expression. Again, we get back to that important permission factor! It does seem okay, to have links in your blog (without the permission of the original creator of that link.) Didn’t I say earlier that copyright law is complex??!!

Well, okay folks, that’s about it today for copyright law.

But, before we depart, let’s take a quick look at libel law. (Very quick look!)

Oops (and before we do that), here’s a homework assignment: Do some research and find out why the following persons are significant when it comes to First Amendment law or ethics:

Janet Cooke, Jayson Blair, Jack Kelly, Stephen Glass.

Who knows, someone may ask you about these people on our final exam.

Also, you should closely study the SPJ Code of Ethics (which you can find online at: www.spj.org)

Again, potential final exam material. When you read the code, think about how various provisions of it might apply to feature writers.

Quick flashback item for class discussion (on invasion of privacy) before we touch on libel law:

1. As a staff member of The Johnsonian, you want to photograph a couple of students embracing each other closely on a bench near the fountain in front of Tillman Hall at Winthrop. Can you take their picture, and be legally safe from invasion of privacy, without getting the couple’s permission?

2. You’re a freelance writer and photographer walking down the beach at Myrtle Beach, S.C. (Just so happens you have your camera with you, as you should have because, once a journalist, always a journalist!) You notice a young woman (about 25-30 years old) sunning herself on a blanket. She’s lying on her back. There’s a slight breeze. She seems to be napping. Suddenly a gust of wind blows the top of her bikini off. She remains asleep. You snap her picture, hurry back to your laptop at your motel room and write an article, accompanying the picture, which you sell to a magazine at the beach. Your article is about what people might be surprised to spot at the beach. The woman in the photo sues you for invasion of privacy. Does she have a good case?

Okay, what is libel?

It’s an important dimension of First Amendment law and you should read all about it in the AP Style book (required textbook for our course.)

A quick bottom line definition of libel is this: Libel is defamatory, false, published information about a named or otherwise identified person.

In libel cases, we have a plaintiff and we have a defendant.

The plaintiff is the person who thinks he/she has been libeled or damaged by the media.

The defendant is the person who wrote the article about the allegedly defamed person; the defendant can also be the medium (newspaper, magazine, movie, Web site...) where the expression/article appeared.

When a plaintiff files a libel suit against a defendant, the plaintiff must prove four things before he/she can prevail or win in the lawsuit:

1. Publication. Means the material had to be published somewhere. Publication has been defined loosely by the courts to mean that if 3 or more people read/see material, then it is published. Does material appearing in an article in The Johnsonian constitute publication? Yes! What about an e-mail that Jamie Low sends Larry Timbs (but Larry does not share with anyone else)? That would not be “publication” because only two people saw the message. But if Larry forwards/shares Jamie’s e-mail with at least one other person, well, that’s a whole different kettle of fish, ladies and gentlemen!

2. Identification. Means that in addition to proving that material was published about her, the plaintiff has to prove that she was IDENTIFIED, by name or otherwise, in that published material.

Example: Say someone thinks they have been defamed (humiliated or embarrassed) through an article published in The Johnsonian. The article in question is about gays and lesbians at Winthrop Univ. It mentions no one’s name and in no way identifies anyone in particular. It is a general overview article about gays and lesbians at Winthrop. Someone quoted in the article says something very, very degrading against gays and lesbians. Ralph Ralphson, a gay student at Winthrop, reads the article and really becomes angry at The Johnsonian and at the student who wrote the article. Ralph sues for libel. Will he win this lawsuit against the newspaper and the writer?

CLASS DISCUSSION OF ABOVE SITUATION AT THIS POINT.

Then, again, still focusing on the element of identification, consider that The Johnsonian runs an article about cheerleaders at Winthrop. The article mentions no one’s name on the cheerleading squad, but it does assert that at least one of the Winthrop cheerleaders is a prostitute. Here’s where the situation concerning I.D. gets tricky. Small group of potential libel plaintiffs? If the group is relatively small, even though no one is named in particular in an article, careful! (How many cheerleaders are there at the ball games at Winthrop?) All of the members of the small group might sue the newspaper for libel (or maybe only one member will sue.)
There’s great risk here cause the group is relatively small.

You may be wondering what happens if the newspaper reporter accurately quotes someone (and has that someone on a recording) saying that one of the cheerleaders is a prostitute. Yes, the reporter has been accurate, but the quote still might be held as grounds for a successful libel suit. Keep reading to understand why.

3. Defamation: (rimes, curiously, with defecation) Means in essence that the published article about a person identified in the article also defames that person. Defames means that the person was greatly humiliated, hurt, embarrassed or had his/her good name or reputation damaged. Defamation also might mean the published material caused the plaintiff to lose wages or friends or business customers or even his/her job.

CLASS DISCUSSION HERE ON HOW AN ARTICLE IN The Johnsonian could possibly defame a Winthrop student. Also, how could the student PROVE that he/she had been defamed?

Remember: Probably the most precious thing we have in life is our good name or reputation. We work to protect that every day of our lives, don’t we? And then along comes a reporter who writes a defamatory article about us. Bad news all the way around!

4. Falsity: In addition, to PROVING that published material about him/her is defamatory and identifies her/him in the article, a libel plaintiff must prove, to win a libel case, that the material published is false. If, on the other hand, the published defamatory material is true, the libel plaintiff can’t win the case. But she may be able to prevail in an invasion of privacy lawsuit. (Flashback to “embarrassing facts” privacy invasion tort referred to in a previous lecture for our class.)

Summary: To win a libel case, the person suing the media and or reporter for libel must PROVE the following elements: Publication, Identification, Defamation, Falsity. Lest all those are proved by the plaintiff (person bringing suit) the plaintiff cannot win.

Okay, one more thing (and it’s a big thing that everyone should read about in the AP Style book or some other good reference book on First Amendment law.)

When it comes to public officials or public figures, these sorts of people must prove to win a libel case against the media something called “actual malice.”

These public officials or public figures must ALSO, of course, prove the same things that private (nonpublic) people must prove: Publication, Identification, Defamation, and Falsity.

So the burden of proof, to win a libel case, is higher for public officials/figures as opposed to private individuals who pretty much keep to themselves.

What, for purposes of libel law, is a private person?

What’s a public official or public person?

(Do some research and reading and find out!)

So what is “actual malice.”

Actual malice means knowledge of falsity OR reckless disregard for the truth. Does not have to mean both. It means knowledge of falsity OR reckless disregard for the truth.

Okay, so what does knowledge of falsity mean?

Reckless disregard for the truth?

Again, do some research–in your style book and/or elsewhere and find out. Key terms for sure.

Also, while you’re at it, look up the famous court case titled:

New York Times v. Sullivan

It’s probably the most famous First Amendment law case in history.

Enough for today.

I’m tired.

Surgery coming on Monday a.m.

Miss you all.

Larry Timbs
Mountain City, Tenn.April 23, 2008

Lecture for my p.m. 343 class today.

Good morning, Professor Jamie.

I’m presuming you will teach my 343 class this afternoon.

Remind them to take notes of key points; helps them learn.

Lecture today focuses on another dimension of First Amendment law–copyright.

First a disclaimer. I am not a lawyer and I don’t play one on TV.

So I don’t claim to be an expert on copyright–a very complex part of First Amendment law.

But I know enough maybe to help all the future professional journalists (or other kinds of communication professionals in our feature writing class.)

A few key points:

1. This lecture is not the end all about copyright law. Everyone in our class needs to read more about copyright in our AP Style book (or in some other reputable source). Everyone can also find an abundance of good info. about copyright on the Web. Do some research. Learn all you can.

2. What is copyright? Basically, it’s a law that protects a person’s intellectual property. If a person writes or creates some sort of expression (photo, graphic, story, sketch...), copyright assures the creator of that expression a certain degree of protection from intellectual theft.

3. When you research or read about copyright law, one word keeps coming up over and over. The word is “PERMISSION.” This means that if you are not sure if something is copyrighted, then it probably is copyrighted! Always, when in doubt as a writer, artist, photographer and you want to borrow someone else’s work for your own use, ask the creator of that work for HIS/HER PERMISSION.

4. Even though you cite the source of expression (that you have lifted from someone else’s work and used for your own purposes), you could still be guilty of copyright infringement, especially if you are somehow being paid money (as in Mad Money) for your writing, graphics, photography or whatever. Again, always best to get PERMISSION OF THE CREATOR OF THE WORK BEFORE YOU LIFT IT FOR YOUR OWN USE.

An exception to the above is if you are researching and writing a paper for a class or course. In that case, if your work is purely for academic reasons and you don’t intend to have it published, you probably don’t need to get permission from the creator of the work you have cited or borrowed. But you definitely need to source it (give the original author credit) in your paper.

5. There’s a common misconception that writing, photography, graphics or other forms of expression have to be accompanied by the copyright symbol (letter C inside a circle) before the expression has copyright protection. Not true! All things written, captured on camera, or sketched are immediately copyrighted!

That said, it is the case that the copyright notice (which you can also have registered with the U.S. Copyright Office) reinforces protection of the creator of the original work. The notice is a caution or reminder to people not to steal or rip off the work without permission of the creator of the work.

6. One big factor that comes into play regarding copyright law is commercial benefit. Are you, through your writing, photography, infographics, sketches, getting paid for that expression? And, if so, does what you claim to be totally your expression (writing, photography, whatever), contain the work of others? Careful if this is the case! You could be found guilty of copyright infringement and pay big money (to the original creator of the expression) in a court of law.

7. There is a little wiggle room in the copyright law. There’s an exemption called fair comment. This means that it’s okay for you to reproduce, without permission of the original creator of the expression, that expression if you are doing an evaluation or critique or review or even a parody of that expression. This helps movie and arts review (books, plays) critics do their thing in the media. But it’s not okay for you, even if you are a critic of some sort, to pass off someone else’s work as your own.

8. Always good to remember that facts and ideas cannot be copyrighted. But the verbatim (precise, exact) expression of those facts and idea are subject to copyright protection.

Example: I write a feature story about the O.J. Simpson murder trial. I note in my story, in my own words, certain facts about that trial such as: it occurred in the early 1990s; Mr. Simpson was accused of murdering two persons–his wife and his wife’s close friend; the two dead persons were found in pools of blood, butchered, on a sidewalk at Mr. Simpson’s home residence in Los Angeles; the jury in this case returned a verdict of not guilty and let Mr. Simpson go free.

On the other hand, if I lift verbatim a passage from another article (about Simpson’s murder trial) written by someone else (whether printed in a newspaper, magazine or from a Web site) and use that in my story (as if I had written that lifted portion), then I am guilty of copyright infringement.

It’s also a common misunderstanding that the amount or extent of text that a person lifts from another person’s writing, without that original creator’s permission, factors into whether a violation of copyright has occurred.

Careful! Courts have ruled that in some instances, even though very few words were stolen from another person’s work, those very few words constitute the heart and soul of the original expression; and thus violation of copyright has occurred. This situation has happened with regard to the words in songs or the musical notes of songs. Very little may have been stolen or borrowed, but it’s still against copyright law.

9. Just because something is on the Web, it’s not free for the taking–UNLESS THE AUTHOR OR CREATOR OF THE WEB SITE STATES EXPLICITLY ON THE WEB SITE THAT MATERIAL ON THE SITE MAY BE USED FREELY FOR WHATEVER PURPOSE.

But again, be careful. If no such statement is on the Web site, the material on the site is copyrighted. We therefore get back to asking for permission to use or borrow.

Bottom line: If you did not create the material you located on a Web site, do not use it without the creator’s permission. Without that permission, you cannot legally use or copy the expression for your own use. Without permission, you are a common, scumbag intellectual, lying, cheating thief who is guilty of copyright infringement!

Some may wonder how they can get caught for stealing work from a Web site. It can happen folks! Big corporations and other entities today have “spiders” (software that scours or crawls the Internet) looking for intellectual property thieves.

Blogging: This is a fairly new phenomenon, in terms of copyright law, but my reading is that while you can blog freely, you should not reproduce or blog someone else’s verbatim expression as your own expression. Again, we get back to that important permission factor! It does seem okay, to have links in your blog (without the permission of the original creator of that link.) Didn’t I say earlier that copyright law is complex??!!

Well, okay folks, that’s about it today for copyright law.

But, before we depart, let’s take a quick look at libel law. (Very quick look!)

Oops (and before we do that), here’s a homework assignment: Do some research and find out why the following persons are significant when it comes to First Amendment law or ethics:

Janet Cooke, Jayson Blair, Jack Kelly, Stephen Glass.

Who knows, someone may ask you about these people on our final exam.

Also, you should closely study the SPJ Code of Ethics (which you can find online at: www.spj.org)

Again, potential final exam material. When you read the code, think about how various provisions of it might apply to feature writers.

Quick flashback item for class discussion (on invasion of privacy) before we touch on libel law:

1. As a staff member of The Johnsonian, you want to photograph a couple of students embracing each other closely on a bench near the fountain in front of Tillman Hall at Winthrop. Can you take their picture, and be legally safe from invasion of privacy, without getting the couple’s permission?

2. You’re a freelance writer and photographer walking down the beach at Myrtle Beach, S.C. (Just so happens you have your camera with you, as you should have because, once a journalist, always a journalist!) You notice a young woman (about 25-30 years old) sunning herself on a blanket. She’s lying on her back. There’s a slight breeze. She seems to be napping. Suddenly a gust of wind blows the top of her bikini off. She remains asleep. You snap her picture, hurry back to your laptop at your motel room and write an article, accompanying the picture, which you sell to a magazine at the beach. Your article is about what people might be surprised to spot at the beach. The woman in the photo sues you for invasion of privacy. Does she have a good case?

Okay, what is libel?

It’s an important dimension of First Amendment law and you should read all about it in the AP Style book (required textbook for our course.)

A quick bottom line definition of libel is this: Libel is defamatory, false, published information about a named or otherwise identified person.

In libel cases, we have a plaintiff and we have a defendant.

The plaintiff is the person who thinks he/she has been libeled or damaged by the media.

The defendant is the person who wrote the article about the allegedly defamed person; the defendant can also be the medium (newspaper, magazine, movie, Web site...) where the expression/article appeared.

When a plaintiff files a libel suit against a defendant, the plaintiff must prove four things before he/she can prevail or win in the lawsuit:

1. Publication. Means the material had to be published somewhere. Publication has been defined loosely by the courts to mean that if 3 or more people read/see material, then it is published. Does material appearing in an article in The Johnsonian constitute publication? Yes! What about an e-mail that Jamie Low sends Larry Timbs (but Larry does not share with anyone else)? That would not be “publication” because only two people saw the message. But if Larry forwards/shares Jamie’s e-mail with at least one other person, well, that’s a whole different kettle of fish, ladies and gentlemen!

2. Identification. Means that in addition to proving that material was published about her, the plaintiff has to prove that she was IDENTIFIED, by name or otherwise, in that published material.

Example: Say someone thinks they have been defamed (humiliated or embarrassed) through an article published in The Johnsonian. The article in question is about gays and lesbians at Winthrop Univ. It mentions no one’s name and in no way identifies anyone in particular. It is a general overview article about gays and lesbians at Winthrop. Someone quoted in the article says something very, very degrading against gays and lesbians. Ralph Ralphson, a gay student at Winthrop, reads the article and really becomes angry at The Johnsonian and at the student who wrote the article. Ralph sues for libel. Will he win this lawsuit against the newspaper and the writer?

CLASS DISCUSSION OF ABOVE SITUATION AT THIS POINT.

Then, again, still focusing on the element of identification, consider that The Johnsonian runs an article about cheerleaders at Winthrop. The article mentions no one’s name on the cheerleading squad, but it does assert that at least one of the Winthrop cheerleaders is a prostitute. Here’s where the situation concerning I.D. gets tricky. Small group of potential libel plaintiffs? If the group is relatively small, even though no one is named in particular in an article, careful! (How many cheerleaders are there at the ball games at Winthrop?) All of the members of the small group might sue the newspaper for libel (or maybe only one member will sue.)
There’s great risk here cause the group is relatively small.

You may be wondering what happens if the newspaper reporter accurately quotes someone (and has that someone on a recording) saying that one of the cheerleaders is a prostitute. Yes, the reporter has been accurate, but the quote still might be held as grounds for a successful libel suit. Keep reading to understand why.

3. Defamation: (rimes, curiously, with defecation) Means in essence that the published article about a person identified in the article also defames that person. Defames means that the person was greatly humiliated, hurt, embarrassed or had his/her good name or reputation damaged. Defamation also might mean the published material caused the plaintiff to lose wages or friends or business customers or even his/her job.

CLASS DISCUSSION HERE ON HOW AN ARTICLE IN The Johnsonian could possibly defame a Winthrop student. Also, how could the student PROVE that he/she had been defamed?

Remember: Probably the most precious thing we have in life is our good name or reputation. We work to protect that every day of our lives, don’t we? And then along comes a reporter who writes a defamatory article about us. Bad news all the way around!

4. Falsity: In addition, to PROVING that published material about him/her is defamatory and identifies her/him in the article, a libel plaintiff must prove, to win a libel case, that the material published is false. If, on the other hand, the published defamatory material is true, the libel plaintiff can’t win the case. But she may be able to prevail in an invasion of privacy lawsuit. (Flashback to “embarrassing facts” privacy invasion tort referred to in a previous lecture for our class.)

Summary: To win a libel case, the person suing the media and or reporter for libel must PROVE the following elements: Publication, Identification, Defamation, Falsity. Lest all those are proved by the plaintiff (person bringing suit) the plaintiff cannot win.

Okay, one more thing (and it’s a big thing that everyone should read about in the AP Style book or some other good reference book on First Amendment law.)

When it comes to public officials or public figures, these sorts of people must prove to win a libel case against the media something called “actual malice.”

These public officials or public figures must ALSO, of course, prove the same things that private (nonpublic) people must prove: Publication, Identification, Defamation, and Falsity.

So the burden of proof, to win a libel case, is higher for public officials/figures as opposed to private individuals who pretty much keep to themselves.

What, for purposes of libel law, is a private person?

What’s a public official or public person?

(Do some research and reading and find out!)

So what is “actual malice.”

Actual malice means knowledge of falsity OR reckless disregard for the truth. Does not have to mean both. It means knowledge of falsity OR reckless disregard for the truth.

Okay, so what does knowledge of falsity mean?

Reckless disregard for the truth?

Again, do some research–in your style book and/or elsewhere and find out. Key terms for sure.

Also, while you’re at it, look up the famous court case titled:

New York Times v. Sullivan

It’s probably the most famous First Amendment law case in history.

Enough for today.

I’m tired.

Surgery coming on Monday a.m.

Miss you all.

Larry Timbs
Mountain City, Tenn.

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