Clearing the fog


SPLC attorneys clear up common myths about the law





MYTH: You can’t use photos you find online.

REALITY: Taking a random photo from a Google image search is never a good idea, and including photo credit won’t get you out of a copyright claim. But that doesn’t mean free and fair use photos can’t be found online. Enter “Creative Commons” — a label photographers attach to images that can be used without consent for noncommercial use when proper credit is given (but be sure to read the fine print). Got a story that could use a photo of President Obama or some other government subject? Well, good news, because many federal .gov websites have online photo libraries that are fair game.

MYTH: Go ahead and be ruthless with that April Fools issue. It’s a clear parody so there’s no legal trouble to worry about.

REALITY: This is questionable territory, so tread carefully. In short, an April Fools issue may be OK if no reasonable person would read it as fact. You might want to leave the funny business to comedians, but a paper can implement safeguards to let readers in on the joke. A banner reading “April Fools Parody” isn’t surefire protection from a libel suit, but it might help. Just remember that not everyone shares your idea of what’s funny.

MYTH: You can’t get in trouble for picking up all the campus papers and dumping them -- I mean, it’s not stealing if they’re free!

REALITY: This is theft and should be treated as such. The newspaper is out the printing and distribution costs, plus lost ad revenue. Thieves can face criminal charges for taking newspapers, and several have been successfully sued to recover damages. If the theft is done by a government actor, journalists have an additional claim for censorship. Publications should consider putting a disclaimer in the paper that the first copy is free but additional copies cost a nominal fee, perhaps 25 cents. While this isn’t required, it reinforces for potential thieves that even though the newspapers are “free,” they do have value and stealing them is a serious offense. The SPLC maintains a database of these thefts along with additional resources at www.splc.org.

MYTH: You can’t report that a student was suspended, or pretty much anything they do at school, because of privacy laws.

REALITY: Not even close. Schools may mistakenly argue that the Family Educational Rights and Privacy Act prevents you from printing discipline or academic information about students. Simply put, FERPA applies to school officials, not student publications. It deals with information that comes from someone’s school records, not things a person tells you voluntarily or that you learn from some other source. If you broke into the school records office, you probably have bigger problems to worry about. Otherwise, if you hear this excuse, someone’s mistaken — and it isn’t you.

MYTH: It’s not libel as long as you include “in my opinion” in the sentence and run it in the opinions section of the paper.

REALITY: There’s no magic phrase to get you off the hook for defamation. If your “opinion” convinces people that an underlying fact is true, and it’s not, it could be libelous even though you called it “your opinion.” For example, writing, “In my opinion, principal Smith’s alcoholism is entirely out of hand,” could be libelous. Your opinion is that it’s “out of hand,” but you’re asserting a fact — that he’s an alcoholic. If he isn’t, you’ve got a problem.

MYTH: You can’t take photos of or interview students at school without a permission slip from their parents.

REALITY: Actually, you can. Minors can consent to an interview if they understand the consequences of what they’re doing. So unless you’re questioning someone with a disability or a really young student, you’re free to run what they tell you without parental permission — though it may be advisable in a few extreme cases. They can also consent to having their photo taken; and if you’re in a public space you likely don’t need their permission anyway.

MYTH: If a student takes a photo using the school’s camera, then the school owns the picture.

REALITY: If this is true, then millions of moms with drawings on their refrigerators made with school paper and school crayons are in possession of stolen property. Copyright law recognizes that ownership belongs to the person who created the photo, not the person who provided the materials. The only exception is where a contract transfers ownership or where the photographer is a salaried employee. Neither is likely to be the case in school.


reports, Winter 2011-12