From the Legal Hotline (1-877-NEWS-LAW)
Q. We have been given an article published online by a watchdog group about a situation involving our regional airport. At the bottom, there is a statement that reads: Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you only edit for style or to shorten, provide proper attribution and link to our website.
I’ve not heard of a Creative Commons license. From what I’m seeing, it gives us permission to reprint the article. Is that correct?
A. Creative commons licenses are used when an author wants to give other people the right to share, use, and build upon a work that the author has created. The author retains the copyright but allows for differing levels of openness.
The license here is the most restrictive of the six main licenses and only allows others to download the work and share them with others as long as they credit the author. You can’t change them in any way (except apparently, as noted, to edit for style or shorten) or use them commercially.
But what is meant by “commercial use”? Does it include publishing in your paper? That term is described as:
[Use] in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.
As you can see this definition is minimalistic and avoids going into any subtle nuances or deep dives into use cases. Indeed, Creative Commons, itself, acknowledges that the line between commercial and non-commercial use sometimes can be fuzzy.
Quoting paragraphs from CC’s Defining Noncommercial:
Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial.
The inclusion of “primarily” in the definition recognizes that no activity is completely disconnected from commercial activity; it is only the primary purpose of the reuse that needs to be considered.
In sum, without getting involved in detailed legal research, I think publication in a newspaper probably is not a commercial purpose. But that conclusion is not entirely certain.
Obviously, newspapers are for-profit businesses, so are commercial in that sense. But, in other circumstances, providing news reporting is generally not considered commercial activity.
So, I think it is probably fine to publish with the attributions you note, but it is a bit of a grey area.
When I looked at this, I found a couple of publisher guidelines asking that re-publishers contact them so I think calling would be a good idea. They may give you verbal permission to reprint their article (an email would be even better) with their only stipulation being to give the group credit and link in a tag anyway you can to them.
As an aside, as you note in your email, for many non-profit watchdog publishers like this one, republishing helps their cause. Their biggest goal is to make people aware of them. Some even go so far as to do investigative reporting for newspapers that don’t have the staff to do it and will even request public records on behalf of newspapers and either follow through and report on the subject matter themselves or freely turn the reports over to the newspaper asking for them. So, the result of republishing and even exchanging information can be a win-win for the paper and the watchdog.
Q. We have been asked by a reader to remove from our website/internet a publication regarding a legal petition regarding the reader’s husband we ran in 2022. She has provided a court document that apparently dismissed the petition due to it being filed by person/persons impersonating her husband. How are we required to respond? Also note you cannot get to this publication from our website. Those pages were removed a year ago.
A. There is no legal requirement to remove the publication if accurate and not defamatory at the time published. If later information becomes available, you have the editorial discretion to remove it from your site. However, even if you were disposed to do that, that does not seem to be possible here. You may want to just let her know you cannot remove it from your website as it has already been deleted, and you have no way to remove it from other sites.
Q. We ran an article on the death of a local personality using an obituary from the deceased’s husband and photos he included of the family. After the article ran, we received a phone call from a person that the photos were personal and private and we had no right to run them and we’d be hearing from her attorneys. The photos are low resolution and they’re all at public venues and two were taken outside.
A. I did not see any issues with running the photos but wanted to run this by Jim McGuire in Tampa, who is brilliant on these questions. Here are his thoughts.
From a legal perspective, I don’t see any real concerns. I seriously doubt the photographer has registered the copyright and it is not even clear that the caller is the photographer. So, no copyright claim. I also don’t see any invasion of privacy claim. As noted below, the photos were taken in public places. There also would not be a right of publicity claim, since the photos are not used for a commercial purpose.
On the non-legal side, if the paper is worried that it has offended someone or caused any distress, it could remove the offending photos from the online publication. (It isn’t clear to me that the person was complaining about all of the photos or just some of them). Of course, this might offend the husband, but you can’t please everyone . . .
In sum, I agree with Jim–your legal worries appear to be minimal, and I’ll leave it to you on his possible removal suggestion.
Q. We are hoping you can provide an answer to a question concerning a public records request for which our city has cited an exemption related to legal invoices during “active, on-going litigation” under Sec. 119.071(1)(d), Florida Statutes?
By way of background, in fact-checking an approximation of legal fees paid by the city cited by a plaintiff’s attorney, our paper asked the city’s communication department for a tally to date. The communications office told us to make a public records request. We submitted a request for invoices related to the case, copying the city attorney’s office. The request also included a note: “We are looking for a total. If the city attorney’s office can provide the total, we will withdraw the public records request.”
The city clerk’s office responded to the request by citing an exemption: “Per the city attorney’s office – The city is in active, on-going litigation and therefore any records are exempt pursuant to Sec. 119.071(1)(d), Florida Statutes.” (A total has not been provided.) I have included the email thread if you need additional information.
A. The city cites Sec. 119.071(1)(d), Florida Statutes, as exempting “any records” relating to “active, on-going litigation.” However, the cited section applies to attorney work product and not to any record in general relating to “active, ongoing litigation.”
I don’t think the city can claim the legal invoices are exempt as work product since legal invoices alone are usually not records that reflect a “mental impression, conclusion, litigation strategy, or legal theory.” Accord AGO 00-07 (records of outside attorney fee bills…. are public records subject to disclosure).
However, the legal invoices might contain the attorneys’ narrative entries on the bills, and perhaps this is giving rise to some claim of attorney work product. If that is the case, I think you could agree that the narratives could be redacted, and that the paper merely wants to see the hours spent and fees incurred. None of that is even arguably covered by work product.
As for a summary or total, if it is in an existing record, they should provide it, but I don’t think you can require the city to create a new record that totals the invoice amounts unless they agree to do so.