Law and the Digital Journalist

 

 

 

 

Journalists make ethical and legal judgments every day that hinge on familiarity with First Amendment guarantees of freedom of press and speech, Fourth Amendment guarantees of the individual’s right to privacy, and Sixth Amendment guarantees of the right to a public trial by an impartial jury. Many legal transgressions occur in the field as journalists gather and report the news. Journalists unfamiliar with state and federal statutes that govern news coverage remain vulnerable to anyone willing to seek compensation or other advantage through the courts. People can sue for anything, and some news sources may use their apparent command of the law to censor, influence, or otherwise profit from news reports and their timing.

The Internet raises further legal questions. Who owns the rights to published or “repurposed” material? Should journalists observe a print or a broadcast legal model, or both, when using the Internet? If a site defames an individual or institution, who is responsible? Is it the original author, the online service, and/or the journalist who quoted the information?

Some business ventures buy up blanket copyrights to the output from newspapers and other publishers, and then troll web sites and social media for material that has been reposted without their permission. “Media companies’ assets are very much their copyrights,” says Steve Gibson, the CEO of Righthaven, a copyright trolling firm. “These companies need to understand and appreciate that those assets have value more than merely the present advertising revenues.”¹ Gibson believes infringements occur by the millions, if not billions.²

Such companies prosecute even private, obviously innocent violators, and frequently collect monetary damages. Law firms also troll the Internet in much the same way, looking for libelous reports against their clients, whether corporate or individual.³ As technology and media platforms influence how electronic journalists gather and report the news, courts struggle to answer ever-changing questions and issues.

This chapter discusses legal questions that journalists face routinely and offers guidelines to help journalists know when to seek advice. A generous application of fairness can help eliminate the need for some routine legal advice, but the guiding rule should always be “If in doubt, seek help” In no way should any part of this chapter be considered as actual legal advice or as a substitute for appropriate legal counsel.

GATHERING THE NEWS

The First Amendment usually protects the right to speak and publish, but it does not automatically protect the right to gather news. Even so, the courts have generally held that if journalists are to report news they must also have the right to gather it. As a rule when gathering news, journalists may go anywhere a person can go without special permission—so long as their equipment doesn’t get in the way. Although journalists may attend a theater opening, a political rally, or a courtroom trial, they almost never can light, photograph, record, or transmit live pictures of these same events without first obtaining special permission. When it comes to gathering the news, nowhere in the law are reporters and photojournalists more likely to cost their stations money than in matters of libel (defamation) and invasion of privacy.

LIBEL

Libel (defined in the courts as malicious defamation) is the use of factual information (as opposed to opinion) that holds someone in hatred or contempt, subjects the person to ridicule, or otherwise lowers esteem for the individual. Property, businesses, and institutions can also be libeled. Defamation can occur as soon as you communicate a false statement of fact to a third party, even if you never broadcast the statement. Although oral defamation might qualify as slander, in television news it’s considered libel, even if the alleged defamation is made orally.

Know the Statement Is True

Because libel is a statement of information that constitutes defamation (as opposed to a statement of opinion), an excellent protection against liability is to have good reason to believe a statement is true. Few journalists can know with certainty that a statement is false. For the most part, journalists can only know what they see in documents or hear from sources. If a reporter uses evaluative judgment words, such as, “probably,” “in most people’s opinion,” or “any sane person can see,” those words would probably fall under the heading of opinion, which cannot be false in the same sense that a statement of fact can be false. Fortunately, for journalists to be liable for defamation, they must normally know a statement is false or be aware that it is probably false. Such latitude offers a heady measure of legal protection.

In some states a common test for defamation is negligence. In other words, courts look for evidence that the journalist used “due care” in evaluating the truth of a defamatory statement. To protect yourself against charges of negligence, always adopt a higher standard than the law sets. Ask yourself, “Do I believe the statement to be true?” This is a much easier and more practical question to ask than, “Do I believe the statement to be false?”

Another test is to ask, “Whom am I talking about? Might what I report in some way lower our esteem for that person?” In applying such a test, it’s important to remember that most substantive news is derogatory to someone. Still, if you can answer yes to the question “Does this look and feel authentic?” you’ll probably be safe even if the statement later proves to be false. As yet another safeguard, ask yourself, “Does the public have a right to know this?” Perhaps the information addresses some aspect of public business, for example, or comes from sworn testimony or from subpoenaed information that is part of the court record.

Evaluate Sources to Eliminate Malice

Whenever someone makes derogatory statements about another person, try to evaluate the person’s motives. Was he just fired? Is he bitter? Perhaps you interview a woman whose sister has been beaten to death, and the woman tells you, “Her husband was a no-good bum. He beat her for years.” In that moment, you are helpless to know whether the statement is true or false.

Only if the statement is made during a live broadcast, and only if you used due care to stop it, might you escape liability should the broader standards of defamation be applied. In the previous example, the woman could make the statement; you could say what the woman told you; you could make the statement without attribution; but in all three instances the court would typically consider your responsibility for the allegation to be the same. Later you might be able to establish the woman’s malice, but if you air the allegation without first evaluating your source, the court may ask whether there was something further you should have done—and there usually is—to establish the source’s motives.

Note the distinction between the two concepts of malice applied in this discussion. An older, common-law version of malice applies in establishing the malice of the news source. Because of the 1964 U.S. Supreme Court ruling in New York Times v. Sullivan, however, a second concept of malice applies to the journalist. This newer concept, called “actual malice,” or the Sullivan Rule, as later modified, results from the Court’s opinion that “Constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”⁴

The ruling applies to public figures or to persons who have voluntarily placed themselves in the public view. The issue of actual malice as it applies to private plaintiffs is left to state law. Some states allow reporters to repeat charges they suspect are false. Other states require that reporters investigate such charges before they repeat them.⁵ You can study a fascinating array of up-to-the-minute free speech, copyright, and invasion of privacy decisions by entering such terms in your Internet browser as you encounter them while reading this chapter. A good starting point is the College Media Adviser’s site at http://www.collegemedia.org/. Other resources are noted throughout this chapter and within the endnotes.

Assume the Highest Standard

Actions for libel can be brought in any state in which a station’s signal is received. A Pennsylvania resident libeled by a New York station could bring suit in his home state, for example, although Pennsylvania courts normally would use the libel standards that apply in New York. This offers some protection against individuals who might otherwise sue in the state with the most favorable chances for settlement. Consequently, attorneys generally advise that you assume the standard for your own state, or preferably an even higher standard.

Use Caution When Dealing with Police

Any time police serve as your primary source for potentially defamatory statements, or any time you’re tempted to publish information obtained from the police radio, use caution. A street cop may tell you on the record, “This looks like it could be a gangland drug-related shooting,” but to protect yourself check further; otherwise, simply through inference, you could be defaming an innocent person. In one libel action, a reporter aired police-supplied photographs of alleged “thieves and burglars” at a flea market. One of the persons clearly identified in the photographs had no police record and sued for libel. A court ordered the police to pay a penalty for libel.

INVASION OF PRIVACY

The Fourth Amendment to the Constitution protects the individual’s right to privacy, including the “right of the people to be secure in their persons, houses, papers, and effects.” As defined in the courts, invasion of privacy is any act of intrusion that occurs without an individual’s consent, including trespass and publication of embarrassing facts (even if true), and that violates an individual’s reasonable expectation of the right to privacy (Figure 14.1).

As the concept affects journalists, it has parallels with libel law, but note the distinction about truth. Libel is actionable only if the report is false. Invasion of privacy can be actionable even if the report is true. Exceptions occur if the information is already part of the public record or if the report concerns activities that occurred in public. Such information is privileged, even though it might be false, provided it is reported completely and as accurately as it was made available to the journalist.

In gathering television news, one of the most common forms of invasion of privacy is trespass. Trespass occurs when you enter someone’s property or premises illegally. Often, trespass is inadvertent. Someone with apparent authority gives you permission to enter the scene of a news event; later, someone with greater authority tells you to leave and threatens you with a lawsuit. What are the damages for walking into a person’s home and invading privacy? The answer can be anything from one dollar in actual damages to clean the carpet you soiled, to punitive damages that are anyone’s guess for causing “emotional distress.”

 

DEFAMATION

An area of great danger to journalists is unsuspecting defamation, which often occurs when pictures or video are used to carry most of the reporting load. Each of the following examples conceivably might lead to claims of an alleged invasion of privacy called publicizing in a false light.

 

  ■ The camera shows a reporter on a crowded street corner, then pans over to show a hapless passerby as the reporter says, “Tax cheats cost the government billions every year.”

  ■ Voice-over narration discusses the problem of overweight Americans while the television screen shows generic cover footage of women walking along a street. The women, through “guilt by illustration,” are implicated as being overweight.

  ■ Reporter voice-over narration says, “Drug dealers are using their profits to buy huge homes like these.” The narration is unwittingly married with generic cover footage that shows the home of a respected commodities exchange executive. A lawsuit follows.

  ■ Several young women walk along a street against voice-over narration that charges that the area being shown is full of prostitutes. The women, not surprisingly, sue the station.

 

The use of generic video, which some attorneys call “inadvertent cutaways,” is a dangerous journalistic practice that leads to libel and invasion of privacy suits. When suits are filed against reporters who shoot a street scene, then use it generically for two years to illustrate scripts about prostitutes, thieves, and tax evaders, judges are likely to say, “When you were talking about the mad rapist, you could be understood to have been talking about the person you showed on the screen. Let’s let the jury decide.”

USE OF THE WORD ALLEGED

A time-honored way to handle criminal cases is to remember the adage, “No charges, no name.” In criminal cases, a person’s identity should be withheld until charges are filed. At the point charges are filed, the word alleged can be one of the reporter’s most important legal protections. This is because how much you can say (and sometimes show) about anyone associated with a crime or a criminal depends on the level of that person’s involvement.

There are at least three critical levels to consider:

 

1. Material witnesses: Some people are brought in as material witnesses, nothing more.

2. Suspects: Other individuals are brought in as suspects, or material witnesses may become suspects.

3. Arraignment: Only at arraignment does actual “alleging” begin; at this point someone charged with murder becomes an alleged killer.

 

In a sense, even someone convicted of murder remains an alleged killer. The jury may say he was the killer, but the journalist can never know with absolute certainty. Although the conventional wisdom in many newsrooms holds that the word alleged is useless under the law, it may help establish the journalist’s “state of mind” toward the suspect when the story was reported.

APPARENT AUTHORITY

Technically, you are liable for trespass if you’re in the wrong place at the wrong time. Typically, however, courts determine a journalist’s guilt or innocence based on apparent authority. The following examples illustrate some of the everyday challenges journalists are likely to encounter.

Fatal Fire

You seek permission to shoot video of a fatal fire at a retirement facility. The angle on your story is that many of these facilities in your area may not be fireproof. The manager is on duty and tells you, “Go on in.” The fire chief, at your request, later also grants you access to enter the facility. You shoot video until the fire is almost out, but as you prepare to leave, the facility’s owner arrives. The fire chief has long since left, but the owner tells you to leave immediately. The moment the owner tells you to leave, you must leave, but the most immediate question is whether you’re liable for trespass for having entered the facility in the first place.

Courts generally answer this question based on apparent authority. If someone on the scene says, “I own or lease this property; come on in,” and you have no reason to doubt that person’s authority, it’s normally safe to enter the premises. If you can’t find the owner or manager and the fire chief gives you permission to enter, you may still enter the premises. However, once inside, you might still be liable for trespass or invasion of privacy if, for example, you inadvertently shoot into a private room and show an elderly resident in an embarrassing situation.

Assuming you do not invade anyone’s privacy, it’s probably safe to air any footage you shot while you had apparent authority to shoot, that is, from the facility’s manager or from the fire chief. If the owner (the last person to arrive at the scene) tells you not to use any footage you’ve shot, even under the fire chief’s apparent authority, it’s probably still safe to air anything shot before the owner’s arrival. In this example, if anyone were to be sued, it probably would be the fire chief. If in doubt, consult your station attorney.

Day Care Center

You receive permission from a city building inspector to enter a day care center that has been cited for safety violations. The city building inspector is the apparent authority, although you must leave if the manager or owner (either of whom have greater authority than the building inspector) tells you to leave.

Landlord–Tenant Dispute

You’re covering a landlord–tenant group dispute. You normally may enter someone’s private apartment at that person’s invitation, even if the landlord tells you to leave, because in many states tenancy rights give the individual greater apparent authority than the landlord. You also may stand on public property to photograph the apartment complex and you may be able to stand on a common area of the apartment grounds and shoot video, again with a tenant’s permission.

Entering a Restaurant

You learn that your state health department may close a local restaurant if unsanitary conditions aren’t corrected. As part of your report, you enter the restaurant with cameras rolling, walk to the manager, and begin to ask questions. The restaurant is open to the public, you reason, so anyone can come in. A further question is whether you’re liable for what you shoot before the manager tells you to leave.

In this example, the concept of limited invitation also applies. The courts have held that in the case of restaurants (or even car dealerships), the public has a limited invitation (see LeMistral, Inc. v. Columbia Broadcasting System, 402 N.Y.S.2d 815, 817. N.Y. App. Div. 1978). The public is welcome to come in to eat at a restaurant, or buy cars at a dealership, but not to come in and shoot video. Such practices in your state may therefore fall under the heading of invasion of privacy.

Often, private homes, businesses, and institutions can assume quasi-public status because of some event. Generally, you can shoot anything your eyes can see, if you have permission to shoot in the first place. Be aware, however, that examples are simply that. Check state laws to be certain where you stand and where you can stand. In one incident, reporting crews from two television stations sought permission to enter leased land to photograph horses that were said to be starving. The crews obtained permission from the landowner but not from the individuals who had leased the land. In this case, the overriding question was whether the reporters had reasonable belief that the owner had apparent authority, an answer that will vary from one state to the next.

TECHNOLOGY

Technology has created other opportunities for trespass. The news helicopter is but one example. In numerous states, property lines are considered to extend from the boundaries of the property to the heavens. Technically, any time a helicopter or airplane flies over someone’s property it may be trespassing. Practically, however, the damages of such an act are minimal—unless, of course, a news helicopter hovers for too long above a burning home and fans the flames.

As a rule, journalists have been able to record anything they could see, even with a telephoto lens and a shotgun mike, but the rules may change as more photographers acquire 1,000-mm lenses and ever-more-sensitive microphones. Although it’s true no one has yet determined the maximum focal length you can use to record a news event, it’s equally true that some judge, somewhere, will also ask whether subjects of the long lenses and shotgun and parabolic mikes had a reasonable expectation of privacy.

Hidden Microphones

If someone stands unclothed before an open living room window in a crowded city, that individual might be expected to know someone could be lurking in the distance with a telephoto lens. But if that individual is holding a private conversation inside the home, that same person should have a reasonable expectation to privacy, which extends to protection from “snooper” microphones or even from normal shotgun mikes, which can pick up hushed conversation from great distances.

Shotgun Microphones

In some states, intrusion with shotgun mikes can constitute eavesdropping, a transgression governed by state and federal statutes. Hence, the recording of a restaurant conversation that could be overheard passively by any third party might constitute intrusion because of the patron’s reasonable expectation of privacy while dining.

However, you may get by with airing portions of the district attorney’s comments you recorded at opening night of a new theater presentation, even if the DA said he didn’t like the play and even though you recorded his comments without his knowledge and as a third party to his conversation.

Obviously, the use of concealed microphones for any purpose should be undertaken with great care in order to avoid lawsuits for intrusion. And no journalist should plant a microphone in a flowerpot or make secret recordings of any kind without first checking with the station attorney.

TELEPHONE RECORDINGS

Telephone recordings have great potential to cause legal problems because they can so easily be misused to invade someone’s privacy. Recordings do help ensure exact quotes, and they are commonly used as the electronic equivalent of a reporter’s notes (something to consider should you ever be subpoenaed), but sometimes their use can backfire (Figure 14.2).

 

 

To prevent problems, it’s mandatory that you always advise the person on the other end that you intend to record a conversation, regardless of who initiates the call. Federal Communications Commission (FCC) rule 47 C.F.R.S73.1206 governs the broadcast of live and recorded telephone conversations. Before recording a telephone conversation for a future broadcast or broadcasting a telephone call simultaneously with its occurrence (live), journalists must inform any party to the call of their intent to broadcast the conversation. It is not sufficient to give notice just before the broadcast of a recorded call. An exception exists when the party is aware, or may be presumed to be aware, that the conversation is being or likely will be broadcast, as in the call placed to a broadcast program that features call-in telephone conversations.

Even if you intend to record the conversation only for your records, you should advise the person, preferably before the conversation begins. For maximum protection, record not only your statement of intent, but also the other person’s verbal consent. If you intend to use excerpts of the conversation on air, you should advise the person before the primary conversation begins—again, as near the start of the call as possible.

Surveillance in States with One-Party Consent

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 regulates recorded conversations. The act allows law enforcement agents to conduct electronic surveillance, provided a judge has reviewed the plan and agrees. In many states and under federal law, an exception can be made for the reporter, provided the reporter doesn’t intend to damage an individual’s reputation falsely or to violate someone’s privacy without newsworthy justification. Generally, under such laws, it is legal to monitor telephone calls or make surveillance recordings when one party to the conversation knows what is happening.

Hidden Voice Recorders

Although using a hidden voice recorder where a person has a reasonable expectation of privacy may not violate federal law, in some states the practice might add to a plaintiff’s claim for invasion of privacy or trespass. In states with one-party consent and under federal law, a person acting in the reporter’s place may be able to record a conversation without the reporter’s presence, provided the person who carries the recorder understands what is happening. To be safe, always check with legal counsel.

Two-Party Consent

Twelve states with “two-party consent” require that all parties to conversations, even if more than two, give their consent if the conversations are recorded. Those states are California, Connecticut, Delaware, Florida, Illinois, Massachusetts, Maryland, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Unless consent is obtained from all parties, severe criminal penalties are possible. Reporters who wish to record conversations in two-party consent states should seek knowledgeable counsel to avoid the possibility of severe criminal penalties. For the most recent list of one-and two-party consent states, see The Reporters Committee for Freedom of the Press (RCFP) web site at www.rcfp.org, or write or call RCFP, 1101 Wilson Blvd., Suite 1100, Arlington, VA 22209, 800-336-4243 or 703-807-2100.⁶

Juvenile News Sources

With some exceptions, a child is defined as anyone under the age of eighteen years. Normally, you can use juvenile names and pictures if you obtain them legally—and if the identities are already part of the public record. But to be on the safe side it’s always wise to consult your state law for the exceptions.

Children’s right to privacy is protected from the streets to the home to the courtroom. When a reporter wishes to interview a child on a public street, there is no guarantee of the child’s legal consent to talk unless the person is at least eighteen years of age. The same caution extends to news coverage in schools. Because of the principle of limited invitation, a school principal may legally refuse a reporting crew the right to take pictures or to conduct interviews with children in the school unless the crew first obtains parental permission. Reporters are also routinely excluded from juvenile trials.

From one state to another, juvenile law varies. A juvenile charged with murder, habitual crime, or other felony may forfeit his or her right to privacy. Occasionally, stations may jointly decide not to air a child’s identity, even though the child’s name has been legally obtained and can legally be broadcast. When the choices are difficult and competition a factor, a guiding principle is to ask, “What does the public need to know?” and “Does the public have a right to know this child’s identity?”

SUBPOENAS AND SHIELD LAWS

A reporter’s notes, outtakes, and sources are normally protected because it is generally held that no one has the right to determine a reporter’s editorial judgment. In a number of states, this protection is formally extended through shield laws. However, members of the legal community may ask a judge or jury to rule otherwise. The mildest form of subpoena or court order to produce documents or other information is for an on-air recording; the most severe is for a reporter’s notes or the names of sources.

A reporter must never tell anyone the identities of secret sources or of the content of notes or outtakes. Once you’ve revealed such knowledge, you forfeit your right to withhold the same information from the courts. If your attorney or news director asks whether you have source material, you may answer that you have the material, but never divulge the contents. Attorneys and news directors are the ones paid to say, in court, “Yes, there is material, but we’re not producing it.”

In protecting sources, the key is never to promise a source complete confidentiality unless you’re willing to go to jail indefinitely.

ACCESS LAWS

Whereas shield laws allow the journalist to protect confidential sources under certain circumstances, access or sunshine laws protect the journalist’s right of access to judicial, legislative, and executive records, extraordinary school board and city council proceedings, and the like, which otherwise might be kept off limits to the public. Such open meeting and open records laws may apply to state government but not to local government.

Journalists are routinely excluded from closed sessions of sensitive personnel and legal matters at all levels of government, although some officials may invoke such exclusionary rules to bar journalists from meetings that should remain open to the public. Legal counsel may be necessary to gain permission to attend such meetings or even to learn of actions taken during meetings that should have been conducted in public.

COURTROOM TELEVISION

Because the Sixth Amendment to the Constitution guarantees defendants in criminal cases the right to a public trial, television journalists have fought for decades to bring television cameras into the courtroom. “We have watched wars live on television,” the argument goes, “so perhaps it’s time that American news viewers are able to see what happens in American courtrooms.” Slowly, in state courts at least, they are winning the battle.

The Role of Cameras in the Courtroom

For years, media observers have argued that televised trials help ensure that public trials are indeed public and that they subject judges and other public officials to greater public scrutiny.⁷ Edward Estlow, as president of the E. W. Scripps Company, said, “A trial committed to videotape is a trial more accurately reported because the cameras create a record that both newspaper and broadcast representatives can then consult in order to verify their reportage.”⁸

Journalists believe cameras in the courtroom help audiences better understand the judicial process (Figure 14.3). “Legal experts say that people watching the action on television are getting a glimpse of the excitement of trial work performed by articulate, competent, and hard-working attorneys,” observed Harriet Chiang, as legal affairs writer for the San Francisco Chronicle.⁹ But Chiang and other legal experts note that both sides may become preoccupied with publicity rather than the quest for justice, engaging in “sand-lot style” lawyering.¹⁰

 

 

When cameras are allowed in the courtroom, still more concerns must be answered. If the camera is within the jury’s view, will jurors be influenced as to what the reporter and photographer feel is the most newsworthy or most significant testimony? Will undercover police be publicly identified should they be called to the witness stand? Will journalists use the camera to cover only the most sensational trials or to record only the most sensational testimony (i.e., the star witness breaking down on the witness stand)? What if the rape victim’s name is inadvertently spoken, or her face shown, during a courtroom broadcast? What if a prisoner is called to testify, then later faces retribution from prison cellmates? What if perspiration on the judge’s bald head is unsightly? What if the prosecutor can’t match the defense attorney’s performance? What if…?

Most States Allow Courtroom Media Coverage

Some form of extended media coverage, meaning coverage by television, radio, or still photography, is permitted in forty-eight states, with a majority allowing cameras in a criminal trial. Consent of the presiding judge is usually required, and many states require advance written application for permission. Nearly all states prohibit coverage in cases that involve juveniles, victims of sex crimes, domestic relations cases, and trials that involve trade secrets. Coverage of jurors normally is either prohibited or restricted, to prevent juror identification. To stay abreast of changes in your state, or for a comprehensive summary of TV cameras in state courts, see http://www.rtdna.org/pages/best-practices/freedom-of-information.php.

Television Cameras Banned in Federal Courts

After a three-year experiment in six U.S. district courts and two appeals courts, the Judicial Conference of the United States ruled in late 1994 to ban television cameras in federal courtrooms. “[The] basic concern was the potential impact on jurors and witnesses; potential distraction of witnesses; and whether jurors were made nervous by any fear of possible harm,” said David Sellers, a spokesperson for the twenty-seven-member panel of judges that issued the ruling.¹¹

The experiment had allowed coverage of civil proceedings in the district courts of Indiana, Massachusetts, Michigan, New York, Pennsylvania, and Washington, and in federal appeals courts in New York City and San Francisco.¹² Criminal trials were excluded from coverage, and during the first two years of the experiment, media covered only a handful of civil cases. Judges repeatedly cautioned against media apathy, warning journalists the experiment might fail unless they increased coverage of federal court proceedings.¹³ Still, the ban surprised many observers who fully believed the experiment had been a success.

In September 2010, the Judicial Conference of the United States, the policy-making arm of the federal courts, approved a pilot project lasting up to three years that permits cameras in some federal district courts. Court employees must set up and operate the cameras. The program permits coverage only of civil cases. It continues the rules that have banned cameras from federal criminal trials since 1946.

The conference also allows appeals courts to permit camera access. U.S. Appeals Courts in New York City (2nd Cir.) and San Francisco (9th Cir.) continue the practice.¹⁴

You can find continually updated information on the status of cameras in federal courts at the Radio Television Digital News Association (RTDNA) web site at http://www.rtdna.org/ or the United States Courts web site at http://www.uscourts.gov/; and for state courts at http://www.rtdna.org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php?g=45?id=55.

Standards for Courtroom Coverage

Gradually, judges, attorneys, and journalists establish the standards that answer such questions. Today’s journalists normally operate with one television pool camera (and one still camera for combined newspaper and news service coverage. With pool coverage, a single camera is set up at a stationary point in the courtroom (Figure 14.4), and its signal is fed live to the station, to video recorders just outside the courtroom, or to a central receiving location elsewhere within the courthouse. All stations that wish to cover the trial are provided access to the video signal from the courtroom camera, a method designed to create the least distraction. Sound can be supplied simply by tapping into the public address system found in most courtrooms.

Cameras normally are excluded from pretrial hearings in criminal cases, from voir dire (a preliminary examination to establish a prospective juror’s competence and suitability), and from proceedings in the judge’s chambers. Depending on the state and the judge, cameras may be allowed at other proceedings such as trial hearings, sentencing, resentencing, and the like (Figure 14.5).

In many states, the judge is the absolute authority when it comes to cameras in the courtroom. Each judge handles the procedures differently. Some judges will not allow zooms or camera movement. Others will allow zooms, but not pans—so as not to distract the jury with camera movement. The judge may require the photographer and reporter to wear a coat and tie or other suitable dress. Some judges require that once set up, the photographer and reporter remain in the courtroom—even though the next three days of testimony may not make a newsworthy story—so jurors won’t be influenced by the reporter and photographer’s judgment about the most newsworthy or most significant testimony. At any point in the trial, a judge may terminate coverage if it hinders the judicial process or appears to jeopardize an individual’s right to a fair trial.

 

 

 

Where new courtroom facilities are under construction, spaces to conceal the television camera are an ordinary part of courtroom blueprints. Two-way windows at the back of the courtroom conceal the camera so no one in the courtroom is aware of its presence. If cameras cannot be seen it is more difficult for them to influence the trial’s outcome, though it is possible, especially if courtroom participants know the proceedings are being televised. However, almost without exception, the camera’s presence is quickly forgotten, becoming as common a fixture as the gavel or the witness stand.¹⁵

Some Do’s and Don’ts

When a broadcast news organization wishes to originate trial coverage, the first step is to submit a written request for camera coverage to the judge at least twenty-four hours in advance. If the judge denies access, the judge’s word is final: There usually is no appeal process. If the judge allows trial coverage, rules will almost certainly be imposed—undoubtedly similar to those that follow.¹⁶ You can find specific regulations for any state regarding cameras in the courtrooms and how to gain approval for media coverage, at the National Center for State Courts web site, http://www.ncsc.org/information-and-resources/browse-by-state.aspx This site also lists Court Media Centers, where you can access news releases, recent orders and opinions, alerts, cases of interest, and other useful information.

Cameras in the Courtroom

Do’s:

 

  ■ Do pool all TV and audio coverage.

  ■ Do use only one operator for TV coverage using only one camera set in one location.

  ■ Do dress and conduct yourself in a manner consistent with the dignity and decorum of the courtroom.

  ■ Do use the existing court audio system for sound recording if technically feasible.

 

Don’ts:

 

  ■ Don’t leave media identification on cameras or clothes.

  ■ Don’t take close-ups of jury members.

  ■ Don’t use auxiliary TV lights.

  ■ Don’t take audio recordings of attorney–client conversations or conferences held at the bench.

  ■ Don’t change tape or disk drives while court is in session.

  ■ Don’t use portable voice recorders.

  ■ Don’t ask the judge to referee a media dispute, such as over pooling.

 

After the Verdict Is In

Once the verdict is in and the jury has been dismissed, courthouse reporters traditionally have been free to question jurors about the verdict, their secret deliberations, and why they voted as they did. Still, individuals called to jury duty remain private citizens, and today some courts extend the right to privacy to jurors as they return to everyday life. In re Express - News Corp., 695 F.2d 807 (5th Cir, 1982) the 5th U.S. Circuit Court of Appeals ruled that “jurors, even after completing their duty, are entitled to privacy and to protection against harassment.”

Should attorneys appeal the verdict in a televised trial, their first request may be for video recordings of the trial. The stations’ own rules should apply in governing whether to honor the request. Some stations might supply whatever footage has been aired, but no outtakes. Other stations might supply nothing at all—even in the face of a subpoena. The reasoning is that if pool coverage is allowed, bar associations, watchdog groups, and attorneys can record the trial themselves, unless coverage is limited to news organizations as it sometimes is.

THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998¹⁷

The Digital Millennium Copyright Act (DMCA) is the outgrowth of a 1997 Supreme Court decision that gives the Internet the same free speech protections as print media. The Internet is the first electronic medium afforded such protections (opposed to news programs broadcast over public airwaves, for example) because it’s easy to access and has so many voices, many of them unedited.¹⁸

Copyright Defined

The United States Copyright Office defines copyright as “a form of protection provided by [U.S. law] (title 17, U. S. Code) to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.”

If you own the copyright, you can do whatever you want with the work, whether it’s an audio recording, a book manuscript, video or video script, an original photo, video story or publication, slideshow, drawing, artwork, poem, or sheet music. You can duplicate your original work; rent, lease, or sell it; put it on the Internet; or otherwise show or display it publically. You are protected when the work is created and “fixed in a physical form.” You also can transfer ownership to someone else.

Duration of Copyright

Copyright protection typically extends for the author’s life plus an additional 70 years beyond the author’s death. If two or more authors created the work, copyright continues for 70 years after the last surviving author dies. Exceptions to copyright eligibility include, in the copyright offices’ exact language, the following¹⁹:

 

  ■ “Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

  ■ “Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

  ■ “Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

  ■ “Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).”

 

Copyright Notice

Beginning March 1, 1989, you are not required to register or publish anything you created in order to establish copyright.²⁰ Such copyright is conferred automatically. Note, however, that registration is necessary if you were to sue someone for using your work without permission. Legal protection is greatest when you register your work within 90 days after first publication, rather than after you discover someone is using your work without permission.

Without registration, you may be able to recover only actual damages—which are usually tough to prove—and/or what profits the defendant(s) realized from infringing your work. Timely registration may also help you recover significant statutory damages and attorney fees.

Registration Proves You Own the Work

Registration provides a public record of proof that you own the work, and that your copyright is valid. A formal copyright notice identifies you, the year of first publication, and tells the public your work is protected by copyright.²¹

How to Register Copyright²²

If you place a formal copyright notice on “visually perceptible” works such as video, scripts, graphics, or magazine articles, the notice must contain three elements:

 

  ■ Either the symbol ©, the word Copyright, or the abbreviation Copr.

  ■ The year the work was first published. (Exceptions occur when the picture, graphic, or even a sculpture is reproduced on jewelry, stationary, postcards, or similar items.)

  ■ The name or an abbreviation that identifies the owner.

Thus, any of the following forms of copyright notice would suffice:

© 2012 Hans Jensen

Copyright 2012 Hans Jensen

Copr. 2012 Hans Jensen

Notice of copyright on sound recordings uses the symbol “P” in a circle (the designation for phonorecord, i. e., 2012 Wowza Records Inc.) rather than the copyright symbol ©.

You can register your work at http://www.copyright.gov/eco/index.html, either electronically or using paper forms. See www.copyright.gov for information regarding your specific work and the number of copies to submit. You can download the most common copyright forms at http://www.copyright.gov/forms/formco2d.pdf

(You also can access either site to register online or by mail. Simply photograph the appropriate tag below on your smartphone, using an app such as Mobiletag or Scanlife.)

 

What You Own

If you (or an organization) wanted to hold a yard or tag sale to sell or give away some books, old newspapers, magazines, CDs, DVDs, film reels, phonograph records, and VHS tapes, you could. While you don’t own the content (it’s copyrighted), you do own the recording media (printed materials, DVDs, and video cassettes). Moreover, the publisher or other creator has already received a payment or royalty for every item you wish to sell.

Under the DMCA, it’s a different story with content you download from the Internet. You could not sell that downloaded content, whether you bought an e-book novel or e-textbook, a Netflix movie streamed to your computer or TV, a digital copy of a Chicago Tribune or Time article, or copies of music from iTunes or Amazon. com. That’s because such items are copies of the original. Just as you can’t copy and distribute entire books, DVDs, CDs, magazines, newspapers, video or cassette tapes, and phonograph records in physical form, neither can you copy and distribute them in digital form.

Nothing on the Internet, other than a live webcast, is in its original physical form. While it’s true that physical media are rarely available in their original form either, the issue is whether the content originator is fairly compensated for copies downloaded from the Internet. Anyone who copies and distributes digital media illegally deprives artists, writers, musicians, and other copyright holders of lawful income.

FAIR USE

The doctrine of fair use provides a defense against copyright infringement. As a television reporter, web journalist, or video journalist, you may wish to show, quote, or otherwise display part of someone else’s work. You might quote part of an article or a book, for example, or show clips from a theatrical film as part of your critique of a copyrighted work. You might include a photo or two in your report from a touring exhibit. Copyright law allows publication of representative examples, or “fair use” of such materials, without permission from the copyright owner, provided you credit the work and its author(s). The “Fair Use” doctrine assumes that the public and the copyright owner potentially benefit from such limited but “enhanced” publication.

Section 107 of the United States Copyright Law extends “fair comment and criticism” to “news reporting, teaching, scholarship, and research.” Still, how do you know whether a particular use is fair? Section 107 sets out four factors to help you decide²³:

 

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

2. the nature of the copyrighted work

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. the effect of the use upon the potential market for or value of the copyrighted work.

 

In the words of Section 107, “… distinction between ‘fair use’ and infringement may be unclear and not easily defined. No specific number of words, lines, or notes that may safely be taken without permission. General guides for brevity, or how much work you can fairly copy without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”²⁴

If you were to innocently include more content than fair use would allow in a story, you could put yourself, your employer, its owners, and its web host at risk. Whenever you’re in doubt, even in private or semi-public communication, hesitate. You can’t always know what to do regarding copyright and fair use, but you can always ask for legal guidance. As the Knight Citizen News Network notes, “Newspapers, magazines, and broadcast networks typically have their own lawyers. But citizen media outlets, bloggers, social network members and other Internet users generally don’t have lawyers on standby.”²⁵ Beyond such guidance lies yet another backup plan: “If in doubt, you must leave it out.”

GENERAL FAIR USE GUIDELINES FOR EDUCATION AND PUBLISHING

Internet Service Providers

Section 512 protects the Internet Service Provider (ISP) from liability if it simply serves as a “passive conduit” for illegal or copyrighted content that a client or other user uploads. Protections vary according to the type of service the ISP offers. If it provides storage for caches, web hosting, or hyperlinking, then it must comply with a provision called “notice and take-down.”²⁷ This provision requires that any online service provider must take down infringing material when the copyright owner gives notice of its presence on the provider’s service.²⁸, ²⁹

Plagiarism

The doctrine of fair use has an evil twin called plagiarism, the act of representing someone else’s work as your own. Anyone who appropriates copyrighted material without identifying the source is guilty of plagiarism. Stealing another’s work is as simple as copying and pasting material off the Internet. It represents an ethical and moral lapse and can lead to litigation. Even unintentional plagiarism can get you fired. Telling the boss you acted innocently probably won’t help much.³⁰

You can avoid plagiarism if you simply attribute other people’s work. No matter the source, attribute the material, whether you quote something from a book or a newspaper article, show a video clip or a web page, use a line from a song, or even use a direct or paraphrased quote from a conversation with another person. Also remember to attribute the source of ideas, opinions, and claims that others originate.

Even content that appears to reside in the public domain may have copyright protection. This includes e-mail, postings to social sites, and stories derived from or based on an existing work. You must also cite information that has passed out of copyright and that now exists in the public domain.

It’s unnecessary to attribute common knowledge, such as the medical consensus that smoking is dangerous, or the popularity of gambling in Atlantic City and Las Vegas.

Chip Scanlan at the Poynter Institute offers a handy guide to help you avoid plagiarism at http://www.poynter.org/uncategorized/3323/the-first-peril-fabrication/

(To access Scanlan’s guide, you can photograph the QR code in Figure 14.7 with your smartphone, using an app such as Mobiletag or Scanlife.)

 

Obtain Rights When Necessary

Universities commonly notify faculty, staff, and students to first obtain the rights to use copyrighted material that exceeds fair use guidelines. You can find information about protecting yourself at many university web sites, including, for example, Indiana University.³¹

You can access information about obtaining permission to use copyrighted works, including the following works, at web sites such as the U.S. Copyright Office (Circular 22),³² the Poynter Institute,³³ the University of California,³⁴ and eHow.com.³⁵

 

    ■ Works in Print

    ■ Online Works

    ■ Musical Works

    ■ Images/Pictures

    ■ Motion Pictures

    ■ Software

    ■ Syndicated Cartoons

    ■ Syndicated Editorials

    ■ Religious Works

 

Government publications³⁶

As a rule, works produced by the United States government have no copyright protection. Title 17 of the United States Code (17 USC § 105) states, “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”³⁷ (Note that all works without copyright must still be attributed.) The government has no obligation to make all works publically available, and it can deny access to even non-copyrighted works for reasons of national security, export control, and patent applications.

Sometimes the federal government acquires ownership of copyrighted works, which continue to retain their original copyright protection. The government does own copyright to the work, however, if an independent contractor assigns copyright back to the government. Hence, government works, such as public service announcements, sometimes carry copyright notice.³⁸

Outside contractors may own copyright to the work they produce for the federal government, so it can be difficult to know which documents are in the “public domain” and which are not. Furthermore, the government doesn’t have to give notice that its works carry no U.S. copyright, and it or its agencies may still copyright the works in other countries.³⁹, ⁴⁰

Freedom of Information Requests

If you believe your local, state, or federal government is withholding information in the public interest, but that would cause no harm other than to those who would deny its publication, you can file to see the document under Freedom of Information for disclosure of government information.

The Reporters Committee for Freedom of the Press offers the Federal Government Guide to open records and meetings laws, how to file requests for documents and records, and typical response times at http://www.rcfp.org/fogg/index.php

RCFP also offers the State Open Government Guide regarding open records and meetings laws in your state, and how to request such information, at http://www.rcfp.org/ogg/index.php

See also a state-to-state guide for access to government data at “Access to Electronic Records, http://www.rcfp.org/elecaccess/.

Municipal regulations, such as access to city council records, will be handled locally. Consult your local government for that information.

Using Information from Government Web Sites

Government web sites are not subject to copyright protection in the United States, provided government employees created the work as part of their official duties.⁴¹ The rules change if a contractor develops or maintains a government web site. Then, any qualifying work the contractor created has copyright protection. Copyrighted work that others own but post to a government site carries similar protection.⁴²

State and Local Government Copyright

Note that guidance up to this point refers only to the United States government and provisions of Title 17 of the United States Code. Assume that nothing covered herein applies when it comes to state and local governments. These entities often claim copyright to works they create, and they can demand, prohibit, or even restrict copyright on the works their agencies produce.⁴³ Your best protection is knowing how your state and local governments approach copyright practices, or at least know where to look on short notice.

Works Made for Hire

Your employer owns the copyright should you create or prepare a work as an employee, through you, the author. Neither would you own copyright if you signed a contract to create a “work for hire,” nor would you own copyright for your contributions to a collective work, motion picture, or audio recording.⁴⁴

In the case of works made for hire, and for anonymous and pseudonymous works (“unless the author’s identity is revealed in Copyright Office records”), the duration of copyright extends for the shorter of 95 years from publication or 120 years from creation.⁴⁵, ⁴⁶

You will avoid copyright issues if you respect every creative individual’s contributions through fair and accurate attribution, and if necessary, by seeking permission to use that person’s copyrighted material.

A Legal perspective

Questions about the law and its interpretations confront every journalist, frequently under the pressures and deadlines of field reporting. Whereas legal counsel may not be immediately available, every journalist can rely on a powerful ally called common sense. The answer to many legal questions is a product of nothing more than a sense of good judgment, fairness, taste, and a concern for the dignity—and privacy—of others. Treat others as you would expect to be treated in the same situation and, above all, remember: When in doubt, consult an authority—either station or legal.

SUMMARY

Self-interest requires that journalists stay abreast of laws that apply to the reporting process. Although the act of reporting the news can lead to legal challenges, many legal transgressions occur in the field during the process of gathering the news. Even when journalists are on solid legal ground, defending against lawsuits can be costly and time-consuming and tends to make reporters overly cautious in covering subsequent stories.

Two of the most important areas of concern to journalists are libel and invasion of privacy. Libel is the use of factual information, as opposed to opinion, that holds someone in hatred or contempt, subjects the person to ridicule, or otherwise lowers our esteem for the individual. Invasion of privacy is any act of intrusion, including trespass and publication of embarrassing facts, even if true, that violates an individual’s reasonable expectation of a right to privacy.

Normally, to be liable for defamation, journalists must know that a statement is false or be aware it probably is false. An excellent protection against libel, therefore, is to have good reason to broadcast only statements you believe to be true, and to use due care in evaluating the truth of defamatory information. Another problem area is unsuspecting defamation, which can occur when generic or file video is used to illustrate a script that carries most of the reporting load.

One of the most common forms of invasion of privacy is trespass. The guiding rule is to obtain permission to enter any private or semiprivate area before you shoot, not afterward. Often, trespass is inadvertent and occurs because someone with apparent authority, perhaps a police officer or fire official, gives the photojournalist permission to shoot. Generally, the footage can be aired up to the point that someone with greater authority, perhaps the building owner, arrives and tells the photographer to leave.

The principle of limited invitation prohibits journalists from freely entering quasi-public businesses and institutions, such as restaurants and supermarkets, to report and take pictures.

Technology has created new opportunities for trespass and eavesdropping. Telephoto lenses and tiny microphones that can pick up hushed conversations from great distances are but two examples. In no case should you attempt to use concealed microphones or cameras, or make secret recordings without first obtaining competent legal counsel.

Telephone recordings can easily be used to invade an individual’s privacy. Always advise the person on the other end that you intend to record the conversation, even if you intend to record it only for your records.

Some states require that both parties to conversations give their consent if the conversations are to be recorded. In other states a person acting in the reporter’s place may be able to record a conversation, provided the person who carries the recorder understands what is happening.

Courts are extra sensitive about protecting children’s rights to privacy. Be especially cautious about broadcasting children’s names, pictures, or other information that would allow them to be identified, even when such information already is part of the public record.

Shield laws help protect the reporter’s confidential sources, conversations, notes, and outtakes, but attorneys routinely try to subpoena such information. For maximum protection, tell no one the identities of secret sources or of the content of notes or outtakes. Once you reveal such knowledge, even to your supervisor, you forfeit your right to withhold the same information from the courts. When protecting sources, never promise a source complete confidentiality unless you’re willing to go to jail indefinitely.

Whereas shield laws allow the journalist to protect confidential sources under certain circumstances, access or sunshine laws protect the journalist’s ability to inspect records and other vital information that otherwise might be kept off-limits to the public.

Although most states allow television cameras and microphones into trial courts, permission normally is granted at the sole discretion of the trial judge, who may also require the defendant’s or the attorney’s consent. To help preserve the right to televise courtroom trials, reporters and photographers are obliged to dress appropriately to the courtroom environment, and they must strive to create the fewest distractions possible and follow the judge’s rules and instructions to the letter.

Copyright is conferred automatically on works created after March 1, 1989. Neither publication nor copyright registration is required. Registration is required if you sue someone for using your work without permission. Legal protection is greatest if you register a work within 90 days of first publication, an action that could help you recover not only actual damages but significant statutory damages and attorney fees.

Fair use allows publication of representative samples of work, such as a quote, a video scene, a book passage, or one or two photos from a touring exhibit, without obtaining the copyright owner’s permission, although what constitutes “fair use” is open to debate. Some firms that buy up others’ copyrights troll the Internet, hoping to reach lucrative settlements even for innocent infringements.

Generally, United States publications carry no copyright, although such works may still be copyrighted in other countries, and some publications may be withheld for reasons of national security, patent applications, and export control. The federal government does own the copyright to some donated works and whenever an independent contractor assigns copyright back to the government. Whether a work is copyrighted or not, it must be attributed.

Copyright for works that employees create belongs to the employer, or by virtue of a freelance contract to create a “work for hire.” You would not own copyright for contributions to a collective work, motion picture, or audio recording.

Plagiarism is the act of representing someone else’s work as your own. To avoid the problem, seek permission to use the work, and be certain to attribute it. Otherwise, follow fair use guidelines and always attribute.

In all matters regarding law and the gathering and reporting of news, the best guide to the proper course of action is to be found in good judgment, fairness, taste, and a concern for the dignity and privacy of others. Beyond these considerations, remember the adage “When in doubt, seek help.”

KEY TERMS

apparent authority 242

copyright 252

defamation 238

fair use 254

generic video 241

Internet 237

invasion of privacy 240

law 238

libel 238

limited invitation 243

plagiarism 255

pool coverage 249

shield laws 246

slander 238

subpoena 246

trespass 240

 

DISCUSSION

  1. At what point during the reporting process must journalists be concerned about considerations of law? Explain your answer.

  2. Discuss the potential chilling effect that litigation or the threat of litigation can have on video content. Provide an example or two as part of your response.

  3. What right, if any, does the journalist have to gather the news?

  4. Explain the customary definition of libel as it applies to digital journalists. Is it possible to “visually libel” a person with the video camera or through a television graphic?

  5. What actions on the part of video journalists might constitute invasion of privacy?

  6. What steps can the journalist take to avoid libel suits?

  7. What are the most important actions a journalist can take to protect against charges of negligence in libel suits?

  8. Discuss the Sullivan Rule as it applies to public figures or persons who have voluntarily placed themselves in the public view.

  9. Why is it important to use caution when using police information as the main source of potentially defamatory statements?

10. Discuss the potentially dangerous journalistic practice of using generic video, also known as inadvertent cutaways, which can lead to libel and invasion of privacy suits. Suggest alternatives that can help the journalist avoid unsuspecting defamation or “guilt by illustration.”

11. Discuss the principle of apparent authority as it applies to invasion of privacy.

12. Explain the role of technology in creating new opportunities for trespass and invasion of privacy.

13. Even routine telephone use can lead to lawsuits for invasion of privacy. Describe steps the journalist can take to avoid legal problems, especially when making telephone recordings.

14. What precautions are essential for the journalist to observe in reporting news that involves children or juveniles?

15. Although shield laws may help the journalist protect a source’s identity, that right can easily be forfeited. Explain how.

16. Discuss sunshine laws and the degree of protection they typically afford journalists and the public.

17. Discuss your views about the role of television in the courtroom. To what extent do you believe journalists should have an unqualified right to record and report courtroom trials? How do you respond to the Judicial Conference of the United States ruling in late 1994 to ban television cameras in federal courtrooms?

18. What standards of conduct and dress should the photojournalist observe when photographing courtroom trials?

19. What considerations should govern a journalist’s relationship with jurors both during and after the trial?

20. When is it legal to use other people’s music, images, and words without their permission under the doctrine of fair use?

21. Discuss common limitations on what constitutes acceptable length or duration of material cited or used under provisions of fair use.

 

EXERCISES

  1. Invite a television news director, general manager, or public relations manager to discuss steps the organization routinely takes to avoid libel suits and other legal challenges. A number of stations conduct ongoing legal seminars to help news employees stay sensitive to legal issues and aware of changes in the law. Some stations may allow you to attend such seminars.

  2. Seek to identify and interview a newspaper or television reporter whose story has resulted in litigation.

  3. You can request personal copies of pocket-sized legal references from many state bar, press, and broadcast associations. Such references commonly cover libel and invasion of privacy laws (including trespass and eavesdropping), and state laws that help protect the journalist’s right of access to public records.

  4. Attend a trial where television cameras are allowed in the courtroom and observe the procedures that reporters and photographers follow.

  5. Watch television or cable newscasts for the use of generic video or inadvertent cutaways that might potentially lead to libel or invasion of privacy suits.

  6. Write a short letter to an imaginary trial judge requesting permission to shoot video at an upcoming criminal trial. Attempt to anticipate and answer whatever objections a judge might have to your request.

  7. Suggest reporter guidelines for recognizing where the limitations of “fair use” become “infringement of copyright.”

 

NOTES

  1. David Kravets. “Newspaper Chain’s New Business Plan: Copyright Suits,” Wired.com, published July 22, 2010, http://www.wired.com/threatlevel/2010/07/copyright-trolling-for-dollars/ (accessed January 3, 2011).

  2. Ibid.

  3. Ibid.

  4. U.S. Supreme Court, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), No. 39, Argued January 6, 1964, Decided March 9, 1964. For full text see http://supreme.justia.com/us/376/254/case.html

  5. Jim Redmond, Frederick Shook, Dan Lattimore, and Laurie Lattimore-Volkman, The Broadcast News Process, 7th ed. (Englewood, CO: Morton, 2005).

  6. http://www.rcfp.org/taping/quick.html and http://defend-yourself-go-pro-se.blogspot.com/2011/05/can-we-tape-or-record.html

  7. “Shop Talk at Thirty: A Case for Courtroom Cameras,” RTNDA Digest, as reprinted with permission from Editor & Publisher, from a speech delivered May 18, 1984, by Edward Estlow, president of the E. W. Scripps Company, before the Judicial Conference of the Sixth U.S. Circuit, 3.

  8. Ibid.

  9. Harriet Chiang, “Ito’s Snakepit,” San Francisco Chronicle (February 12, 1995), 1.

10. Ibid.

11. “TV Cameras Barred from Federal Courts,” San Francisco Examiner, September 22, 1994, A-11.

12. “Out of Order,” Denver Post, September 22, 1994, 18-A.

13. Tony Mauro, “Use It or Lose It,” RTNDA Communicator (August 1993), 9.

14. “Judicial Conference allows cameras in federal district courts,” The Reporters Committee for Freedom of the Press, September 15, 2010, http://www.rcfp.org/newsitems/index.php?i=11558 (accessed January 13, 2011).

15. Radio-Television News Directors Association Legal Seminar, “Broadcast Coverage of the Courts,” Denver, CO, June 2, 1984.

16. Excerpted from “Cameras in Colorado Courtrooms,” (Aurora, CO: Colorado Broadcasters Association), 1983, and “Expanded media coverage of court proceedings,” Media Alert, Colorado Courts, ensuing from Colorado Supreme Court Rules, Chapter 38, Rule 2, Media Coverage of Court Proceedings, effective July 1, 2010, http://www.courts.state.co.us/userfiles/file/Media/Cameras%202010%20update.pdf (accessed January 3, 2011).

17. Digital Millennium Copyright Act of 1998, http://www.copyright.gov/legislation/dmca.pdf (accessed January 13, 2011).

18. You can download a summary copy of The Digital Millennium Copyright Act Of 1998 from the U.S. Copyright Office at http://www.copyright.gov/legislation/dmca.pdf

19. ”Copyright Basics,” U.S. Copyright Office, http://www.copyright.gov/circs/circ1.pdf (accessed January 11, 2011).

20. Ibid.

21. Susan Montgomery, John Welch, and Tom Hemnes, Vol. 9, No. 1, “United States: Benefits of timely copyright registration,” International Bar Association Committee L News Newsletter of the Intellectual Property and Entertainment Law; Committee of the Section on Business Law, http://www.foleyhoag.com/newscenter/publications/general/benefits-of-timely-copyright-registration.aspx (accessed January 11, 2011).

22. “Copyright Basics, U.S. Copyright Office, http://www.copyright.gov/circs/circ01.pdf (accessed January 13, 2011).

23. “Limitations on exclusive rights: Fair use: § 107,” Copyright Law of the United States of America Circular 92, http://www.copyright.gov/title17/92chap1.html

24. “Copyright - Fair Use”, U.S. Copyright Office, http://www.copyright.gov/fls/fl102.html (accessed January 11, 2011).

25. “Top 10 Rules for Limiting Legal Risk,” Knight Citizen News Network, an initiative of J-Lab: The Institute for Interactive Journalism (accessed January 11, 2011).

26. See “Copyright Information: FAQ,” University Library System Digital Library, University of Pittsburg, at http://www.library.pitt.edu/guides/copyright/faqanswers.html

27. “Protecting Internet Platforms for Expression and Innovation,” Center for Democracy and Technology, May 3, 2010 (accessed January 11, 2010).

28. “Protecting Internet Platforms for Expression and Innovation (Sec. 2: “EU and U.S. Policies Protect Intermediaries from Liability”), Center for Democracy and Technology, http://www.cdt.org/policy/protecting-internet-platforms-expression-and-innovation (accessed January 11, 2011).

29. “Copyright Law Meets the World Wide Web,” http://www.acm.org/crossroads/xrds2-2/weblaw.html (accessed January 11, 2011).

30. Susan Kinzie, “An Education in the Dangers of Online Research,” Washington Post, http://www.washingtonpost.com/wp-dyn/content/article/2008/08/09/AR2008080901453.html (accessed January 11, 2011).

31. See http://filesharing.iu.edu/protect

32. See http://www.copyright.gov/circs/circ22.pdf

33. See http://www.poynter.org/uncategorized/775/copyright-issues-and-answers/

34. See http://www.universityofcalifornia.edu/copyright/permission.html

35. See http://www.ehow.com/how_18035_permission-copyrighted-material.html

36. “Frequently Asked Questions About Copyright: Issues Affecting the U.S. Government (Section 3.0 U.S. Government Works,” CENDI (the Commerce, Energy, NASA, Defense Information Managers Group), http://www.cendi.gov/publications/04-8copyright.html (accessed January 12, 2011).

37. “17 U.S.C. § 105. Subject matter of copyright: United States Government works,” Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92, U. S. Copyright Office, http://www.copyright.gov/title17/92chap1.html#105 (accessed January 12, 2011).

38. “Can the government copyright its works? (3.6),” Copyright Law, The [Stason] Ultimate Learn and Resource Center, http://stason.org/TULARC/business/copyright/3-6-Can-the-government-copyright-its-works.html (accessed January 12, 2011).

39. “Freedom of Information Act Guide,” U.S. Department of Justice, http://www.justice.gov/oip/foi-act.htm (accessed January 12, 2011).

40. “Frequently Asked Questions About Copyright: Issues Affecting the U.S. Government,” CENDI Copyright Task Group, http://www.cendi.gov/publications/04-8copyright.html#317 (accessed January 12, 2011).

41. Ibid, (3.1.9)

42. 17 U.S.C. § 201 (D), Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92, Chapter 2, http://www.copyright.gov/title17/92chap2.html (accessed January 12, 2011).

43. CENDI, op cit, (3.2.3)

44. See http://www.copyright.gov/title17/92chap1.html

45. “Copyright Basics.”

46. “Works Made for Hire Under the 1976 Copyright Act,” Circular 9, United States Copyright Office, http://www.publishers.org/main/Copyright/attachments/RPAC_powerpoints_1.pdf (accessed January 11, 2011).