From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. I have a question for you about using a screenshot from a website in an article I’ve written.

Long story short, a candidate who just filed for a local office used to run a political action committee that sold t-shirts with some relatively inflammatory statements on them, including ones that attacked various local politicians and some anti-COVID-19 stuff, too. I’d like to include a screenshot of a few of the shirts in the story, but I’m never too sure about screenshots and fair use.

There’s no specific mention of copyright on the group’s website, but the site was made by a digital marketing company that has a copyright statement saying every piece of the digital marketing company’s site is all rights reserved. I thought maybe it would be easier if the shirts were sold via an embedded Amazon plug-in, or some shop like that, but it seems like the entire shop, items included, is built into the site.

Any help here? It would make our lives easier, I’m sure, if I just mention the shirts in the story and use a more general image, but the image does really drive the point home.

A.In general, if you use the image and it is integral to the news report, this will definitely favor application of fair use. But it could get complicated. The problem is that noncommercial use (e.g., news reporting) is only one of four factors in determining fair use and there are actually no bright-line rules regarding how to apply the four factors. Even courts have said “it is so flexible as to virtually defy definition.” And, even if you have a rock-solid defense of fair use, it doesn’t necessarily prevent a lawsuit from being filed.

So, I think you will still need to determine on a case-by-case basis whether and how to best use a particular screenshot in a story. For example, a fair use argument would be weakened if there any (unintended) commercial benefits derived from the image or if it is not tightly tied or connected to a bona fide news story. For example, in this case, you can use a screenshot of a few of the shirts to illustrate your story because the subject candidate’s political committee used to own the website that sold such shirts. However, using a photo of a shirt model taken by his or a third-party website that goes beyond the story or is of commercial value might not be. It’s all a matter of degree.

That said, in general I think using an image purely to educate, comment, or criticize in news reporting will support fair use. It is good practice to always credit the source/website under the images. Also use thumbnail versions when possible and use only the parts of the image needed for the newsworthy purpose.

Q.I am looking to respond to our local county school district’s communications that I need to go through a portal and sign up through an email through their email system in order to access their response to my open records requests. I requested that their response be emailed, faxed or sent in the mail to me in April. Their media relations officer has refused. Can they do this?

A.Requiring you to go through a portal and sign up through their email system in order for you to access their response to your records requests appears to be an unauthorized form requirement.

The agency custodian must honor a request for copies of records “which is sufficient to identify the records desired, whether the request is in writing, over the telephone, or in person, provided that the required fees are paid.” In this case, the school district should respond to your email request and not impose a portal and “sign up” requirement. [The district can set up the portal/sign-up procedure to help them with their tracking or other purposes, but it cannot refuse your request because you failed to use such method. See Sullivan v. City of New Port Richey, No. 86-1129CA (Fla. 6th Cir. Ct. May 22, 1987)].

Further, the portal requirement seems to be an “automatic delay in the production of such records.” Such automatic delays are impermissible. Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984).

Q.What is the rule regarding whether a public records requestor must identify themselves?

A.The general rule is that requestors of public records may not be required to disclose his or her name, address, telephone number or the like to the custodian (unless the custodian is required by law to obtain this information prior to releasing the records). AGOs 92-38 and 91- 76.

However, s. 1012.31(2)(f), F.S., provides that the custodian of public school employee personnel files must maintain a record in the file of those persons reviewing an employee personnel file each time it is reviewed.

Also, a governmental entity is not required to provide public records to a generic email address, at least not until such time as it is made clear that the address belongs to a person. (“There is a difference between allowing anonymous public records requests and evaluating an agency’s response when such requests are justifiably handled with caution”).

Q.As background, we are requesting the above records from our school district for its policy regarding background checks of visitors at its schools.

To the best of our knowledge, the district has never approved a policy for conducting these checks yet has requested that our newspaper submit to an unspecified background check in order to enter the school.

We were invited to the school for a story on a principal’s graduation but told we would not be allowed in unless we agreed to provide our driver’s license and submit to this background check. We were not told what the check covers and how the information will be used or stored.

We were also told by the principal that this is required by state law and we can find no such law that exists.

A.I was aware of state law regarding background screening for contractors and volunteers but not just general visitors. However, apparently, many school districts are setting up driver license swipe/instant-background check protocols for general visitors, including Duval County (2019). See links.



Q. Our newspaper is “published” (i.e., circulated) in County A where it has no office or printing press) but the paper is actually printed in a nearby county—County B.

How would you word this in the following form affidavit found in s. 50.051? Would you just say “published in County A,” and instead of “published at…….in A County” (again, there is no office or street address in County A)? Or, would you say “printed at 123 Jones Street, County B, and published in A County, Florida.”

A.I think the affidavit could read “published in County A,” instead of “published at…….in County A” as that seems to track the form language the closest. Finally, note that this question will be moot as of Jan. 1, since this form language was removed in the latest legislation.