From the Legal Hotline (1-877-NEWS-LAW)
Q. We have a young university student who has written an article about shark fishing. She has included screenshots from Instagram, most in positions not condoned in the industry or outright harmful to the shark. When we asked about them, she said some are from ‘fake accounts’. My guess is it isn’t up to us whether they’re fake or not. What is the general rule of thumb?
A. My general advice is to be cautious about publishing photographs where you are unsure about who owns the photo. Typically, the person who took the photo holds the copyright, and using it without their permission is illegal, regardless of the publisher’s intent or whether the profile is fake. Jim McGuire at Thomas & LoCicero further advises that if the photos implicate individuals in illegal activity (fishing in areas they are not permitted to fish?), be even more vigilant about where the photos came from and the necessary rights to use them.
Q. We have a local real estate developer “David” who often has business before the town council. His sister “Jane” serves on the council and often acts as David’s advocate during council discussions. Recently, a proposed change to one of David’s buildings in downtown came before the council for approval. This approval is needed due to an ordinance that requires a certificate of appropriateness to make changes to ensure the district’s development consistency.
I watched as it was discussed and voted upon, wondering if Jane would recuse herself from the discussion and following vote. She did not and voted “aye” to approve the change (the vote was unanimous to approve). The next item on the agenda was the town manager’s update, where he reminded the council members they were required to take an ethics course, which I thought was clearly needed. I’ve since learned that this has been recurring behavior and has caused strife within the council.
I’ve spent some time this afternoon digging through Chapter 112 looking for specific guidance on issues related to Jane’s actions. It looks like s. 112.3143 would apply. Does it? Is there relevant case law I should look at? I’d appreciate any guidance you can give.
A. I think s. 112.3143(3)(a) is the relevant law. Generally, a city council member must abstain from voting on a measure which would “inure to the special private gain or loss of a relative” and must, prior to the vote, state the commissioner’s interest, and within 15 days after the vote disclose the interest in a memo.
However, if the measure affects a “class” that includes the officer’s relative (here, the brother), the law requires a more complex analysis involving several factors: size of the class, nature of the interests involved, degree to which all members and relatives receive a benefit or harm. Looking at some of the Ethics Commission opinions, this “class” analysis can be quite complicated. For example, if there is a large zoning change, the gain or loss to the council member may not be “special” and therefore no conflict. I’ve attached a Commission opinion that gives you an idea of how it analyzes the “class” issue in a zoning change case that affected property owned by a commissioner and spouse.
Here, however, the measure before the council was a certificate of appropriateness (COA)–not a zoning change. The COA apparently was issued by the Commission to approve the brother’s exterior changes to ensure the change is compatible with the character of the historic district. Arguably, this seems to inure to the special benefit of the brother so a conflict might be triggered. In fact, there is an older Commission opinion that seems to support the idea that a COA issued poses a conflict prohibiting voting on the matter.
On the other hand, the commissioner and her brother might try to argue the COA affects not just his property but also many other property owners in the historical district who might use that COA as precedent and therefore the conflict is not so special but diluted. I think this is a stretch, but you never know.
So, I don’t have a concrete answer for you, but I hope this information will help you.
Q. Our city has implemented a “responsibility change” for public record requests: requests for documents involving the city council will now go through the city attorney’s office. Other records requests will continue to go through the city clerk’s office, which will continue to maintain the public records portal. Curious–is this type of structure used elsewhere to your knowledge?
A. It’s fairly common practice for custodians to designate another officer or employee to permit the inspection and copying of public records so long as they disclose the identity of the designee to the requestor. This delegation, however, is a matter of administrative process and not a transfer of legal authority. So, here, even with the city attorney as designee, I would think that the council—to the extent it retains supervision and control over its documents or has legal responsibility for their care, keeping or guardianship—would remain accountable for ensuring that these council records are accessible.
Q. We have a freelancer whose work we liked although she never made deadlines, would turn work in and then send us a barrage of minor changes and corrections–some well after we posted the article or printed that edition. Eventually it was untenable.
I heard from her a week or so ago. She was upset because we published a follow-up article to our coverage on a local issue and used a photo we had run previously. Her comment was that since she works elsewhere, she needs to have control over which of her photos are published. My feeling is we paid her for the article and photo. There is no signed agreement. Her argument is that she did tell me she retains the rights although I never really agreed to anything–in fact, this was so past deadline, I just made sure the editor saw it. I don’t process photos, captions, etc. It never occurred to me and it is pretty well buried in the email. Obviously, we won’t run her photos moving forward. To me it is a matter of principle, and I just want to do the right thing. So, I will share your response with her and our copy editor.
Only once did I agree to allow a writer to ‘retain copyright’ and that was a well-known attorney who was writing a book on the area’s history. He explained he wanted his photos and writings for that book, and it was no problem.
Can you give me guidance here? And would you have any sample freelance writer contracts?
A. I agree she probably has some rights in the photographs she took absent an agreement, so I think your plan moving forward is a good one. Attached is a draft agreement you might want to use.