From the Legal Hotline (1-877-NEWS-LAW)
Q. Regarding the new public notice legislation, what historical circulation data does the auditor need in order to certify that the newspaper meets the audience thresholds under the legislation, HB35 passed in 2021, and HB7049 in 2022?
A. While the legislation does not speak to the issue, we think 2 years of such data is a reasonable period and should be available to the auditor. This is consistent with the 2-year certification interval going forward that is required under the new law.
Q. How does the government agency or a private entity placing a legal notice determine if the newspaper meets the audience thresholds in the recent legislation that qualifies it to run them?
A. This will be in large part be based on the auditor certification and audit contained in the law. Those running notices (and the newspapers) should be or will become knowledgeable as the new auditor-certified audience thresholds become more well-known. They should also know the penalties for failure to follow the law (see below). The newspaper will need to be involved in this process as well, such as being in touch with local constituencies and legal advertisers like the county clerk of court, local government agencies, and even local bar association and businesses that place such notices. Finally, FPA has provided guidance and information for use by members and other associations, and government and private entities, to help educate them on the new threshold.
Q. A related question is if a government agency or private entity runs a notice in a newspaper that fails to the meet required audience thresholds—what are the penalties?
A. There are no direct penalties, fines, or sanctions in Chapter 50 for failing to run the notices in a non-compliant newspaper. However, as noted, there are still strong negative repercussions for failure to publish the notices properly. For example, citizens or entities who are adversely impacted by the actions set forth in noncompliant notices may sue both the advertiser and the noncompliant newspaper or other publication carrying the notices for any damages incurred. Further, noncompliant notice of government actions may have to be re-noticed, which will result in delay and additional cost.
Q. We are a free newspaper that publishes ads for fictitious names and storage units because it was our understanding that these 2 categories do not require a “legal” newspaper with a periodical permit. Do you know if this is true?
A. These types of ads are actually legal notices that require a publisher’s affidavit and should run in a Chapter 50 qualified newspaper. Prior to the recent legislation noted above, such qualified papers did not include free newspapers which generally lacked a postal permit. However, with the passage of such laws, free newspapers that meet certain audience thresholds may now qualify to run the notices if they follow the steps outlined in the law
Q. I have a copyright question for you. The Fantasy Fest event in Key West is the biggest promotion of the year. The organization has trademarked that name and protects it aggressively (think Super Bowl). As a news organization, can we use news photos that we took in public in years past that has the words Fantasy Fest in the background? These photos would be among others without the term.
A. We checked in with our copyright expert, Jim McGuire, at Thomas LoCicero firm, and he thinks what you propose to do is fine. One infringes a trademark when one uses a confusing similar word/phrase/image as a trademark (i.e., to identify oneself as the source of goods or services, etc.). A news story showing how people looked and behaved at prior Fantasy Fests, or that show the background circumstances (including the words Fantasy Fest) is not making trademark use of Fantasy Fest.
By way of comment, it is well know that the NFL goes overboard on trying to stop everyone from using the words Super Bowl, but we suspect if they actually litigated some of their claims, they would lose.
Q. We received a letter from an attorney this evening in reference to a piece of artwork we used in an article in 2015. The lawyer is claiming a copyright infringement.
To the best of my recollection (this was more than five years ago), this artwork was given to us by the physician we interviewed for the piece. In the letter, the lawyer claims we removed a watermark, which we most certainly did not (we actually don’t have the capability of doing that). I also have the original jpeg we used, which has no watermark.
Furthermore, this letter claims the artwork was registered for copyright on April 26, 2016. However, our piece was published seven months before.
What’s the proper way to address this? I don’t mind removing the art from the story online — it’s an old story and was a part of a special section and not part of our main news report.
Thanks so much for your assistance!
A. We asked our very knowledgeable copyright experts at Thomas, Locicero to weigh in on this question. Jim Lake at the firm provided the following detailed response, which provides a road map for how to respond to demand letters of this nature.
This stuff ticks me off. For the reasons your editor notes (registration after the newspaper’s publication), the lawyer has NO basis for attorneys’ fees or statutory damages, yet demands them anyway. So, I would definitely point that out.
The absence of copyright management information on the original also is significant. I would say that the newspaper obtained the specimen from a physician as published, did not delete any copyright management information, was not aware the use was improper, and did not intend to infringe.
I would also throw in the argument this was a fair use, for news purposes of factual matter, though between us that’s not the best argument, because the newspaper used the entire work and did undermine the market for the original (by one sale, anyway).
Having said all of that, the most the copyright owner could recover is a reasonable royalty – as I said, no statutory damages and no attorneys’ fees. So, although I would take the art down and offer that alone as a resolution, the reality is that the owner would have a valid basis for demanding a royalty. Of course, whether the lawyer would actually sue with no prospect of a fee award is another matter.