L E G A L G U I D E L I N E S

F O R S T U D E N T J O U R N A L I S T S

Legal Guide

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DOING IT RIGHT PROFESSIONAL STANDARDS OF EXCELLENCE FOR STUDENT JOURNALISTS

This reference guide contains a brief description of legal principles as they apply to scholastic journalism and student yearbook staff members. It is meant to provide a brief overview and serve as a handy reference resource for yearbook advisers and staffs.

This reference guide is not intended to be, nor should be construed as, legal advice from Jostens. For more in-depth information and more detailed explanations of the legal issues and terms discussed in this guide, please visit the Student Press Law Center at www.splc.org, read The Student Media Guide to Copyright Law, offered through the Student Press Law Center, or consult your school district’s attorney.

THE HALLMARKS OF JOURNALISMFAIRNESS, ACCURACY, GOOD TASTE

Being a yearbook staff member is fun, challenging and rewarding. In telling the story of the year, staff members wear many “hats,” including creating

and marketing a product, managing a small business enterprise and upholding the high ethical standards set by the journalism profession. Student journalists are held to the same important legal and ethical standards and guidelines as their professional peers at print and digital media outlets.

For more in-depth information go to www.splc.org

FAIRNESS: All reporting must be fair and unbiased. The yearbook should not be used as a platform for personal views. Both sides of a story should be told.

ACCURACY:All names, quotes and information, including anything submitted by non-staffers, should be checked carefully.

GOOD TASTE:Thoughtful decisions and high standards will ensure that the yearbook is free of questionable material such as racist or sexist remarks, ethnic slurs, crude humor, inside jokes, cruel remarks and glamorizing illegal activities.

Several images used in this publication were captured by the following student photographers and entered in the Jostens Photo Contest. To download an entry form, visit www.jostens.com/photocontest.

p.1: Mickela Miller, Shawnee Mission East High School [KS]

p.3: Maggie Compton, Lovejoy High School [TX]

©2015 Jostens, Inc. 151868

IS IT LEGAL?

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“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Bill of Rights, First Amendment

FIRST AMENDMENT RIGHTS & STUDENT JOURNALISTSTHE HAZELWOOD V. KUHLMEIER CASE

While the U.S. Constitution protects freedom of the press as a First Amendment right, in 1988 the U.S. Supreme Court’s landmark Hazelwood School District v. Kuhlmeier decision granted school administrators the authority to exercise control over the content of school-sponsored publications if they could show that the censorship was based on legitimate educational concerns.

This ruling does not appear to mean that school officials have unlimited control over student media; however, it does mean that students can face increased restrictions on First Amendment rights.

For a high school yearbook that is considered a school-sponsored activity or part of the curriculum, this means that censorship with a reasonable educational justification, as well as prior review of material by school officials, might be allowed. Some states have enacted laws to counteract the effects of the Hazelwood decision.

ESTABLISH GUIDELINES WITH A PUBLICATION POLICYWorking with school administrators to establish clear guidelines for what is

acceptable in the publication is one of the best ways to insure that the yearbook meets journalistic standards of fairness, accuracy and good taste.

These guidelines should be stated in a formal, written editorial policy or publication policy and approved by the appropriate school decision-makers. These guidelines should also be communicated to all yearbook staff members. In discussions about policy and about proposed content, students can demonstrate that they are making content decisions based on established high standards and legal requirements.

Hazelwood Guide Available for Download

The Student Press Law Center has published a comprehensive white paper on Hazelwood v. Kuhlmeier. This 12-page PDF document is a complete guide to the Supreme Court decision and includes a sample publications policy. The guide is available at www.splc.org/article/2015/11/hazelwood-school-district-v-kuhlmeier.

FIRST AMENDMENT

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LIBELAs a student journalist, it’s important to guard against making libelous statements.

In general, libel is a false printed statement that defames a person’s good name. It is a type of speech that is not protected under the Constitution.

A libelous statement may harm a person’s good name, bring about public contempt or disgrace or damage a person’s reputation in the community.

These basic elements define libel: • Publication: A statement must be published (words or pictures). • Identification: An individual must be identifiable. • Injury: Some injury must have resulted to the individual. • Fact: A statement must be found to be false to be considered libelous. A

statement of opinion or fair comment is generally not libelous. However, it is not enough to label a statement as opinion. If it can be proven true or false, it may be considered a factual statement and may be libelous if false.

• Fault: In most states, if an individual bringing a libel suit is a private figure, he/she has to prove the writer (or photographer) did not carefully verify the accuracy of the information. An individual considered a public figure must prove that the writer or photographer knew the information was false or acted in reckless disregard in determining the truth. Both the writer/photographer and the editor, even if they are minors, can be considered responsible and can be sued in a libel case.

TRUTH IS A DEFENSE AGAINST LIBELTruth is a defense against a libel charge. A statement proven true is not libelous.

Checking facts carefully, consulting multiple sources and publishing only material that has been verified as accurate are important steps to help minimize problems with libel.

INTENT IS NOT A DEFENSEIt does not matter what meaning a writer or photographer (yes, images are

subject to libel scrutiny too!) intended to communicate. If a person can reasonably take a statement — or an image — seriously, it may be considered libelous. In a yearbook, joke captions that attempt to be funny as well as captions that incorrectly identify someone may be considered libelous. Photographs, and other visual media, that attempt to be funny but that demean, defame, disgrace or damage a person’s reputation may be considered libelous as well.

LEGAL LIMITATIONS

To adhere to legal and ethical standards as they apply to the field of journalism, student journalists need to educate themselves about such legal limitations as libel, copyright and trademark infringement. The following information is not a complete discussion of these issues, but rather a high-level overview.

“Checking facts

carefully, consulting

multiple sources

and publishing

only material that

has been verified

as accurate are

important steps

to help minimize

problems with libel.”

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Copyright Law

Copyright law protects the creator of the material or the holder of the copyright from unlawful use of their material. The rule of thumb is simple. Material that legally belongs to another party generally cannot be used without permission, unless the use falls within an exception provided by law.

Much of the material encountered in daily life is legally owned by someone. Some of the most common materials protected under copyright law may include:• Song lyrics• Literary works, including prose,

poetry, books, plays, etc.• Artwork, including pictures,

photos, sculptures, paintings, graphics, textiles, etc.

• Photos• Titles of books, movies, etc.,

if the titles are used on merchandising items

• Music, sound recording, videos, audiovisual works

• Maps, stamps, games, currency

• Cartoon characters, movie and television characters

• Websites, screen shots and web pages

• Computer software• Corporate logos

and/or graphics• Apps and Mobile Games

COPYRIGHT & TRADEMARK PROTECTION Copyright and trademark laws restrict the use of material belonging to or created by others.

WHAT IS A COPYRIGHT?While ideas and facts cannot be copyrighted, the way they’re expressed can be. Copyright law protects the owner’s right to control the use of their intellectual

property. Many copyrighted materials display the copyright symbol ©, the name of the author of the work and the date of publication or copyright. However, since 1989, works published without the © mark are still protected by copyright law.

Anyone who uses copyrighted material without prior permission of the copyright owner or whose use is outside of an exception provided by law may be guilty of copyright infringement. It’s best to assume that all published works, including works posted on the Internet and unpublished works, are protected by copyright law.

Works created and published prior to 1923 are in the public domain and thus unprotected by copyright law (see Public Domain). Examples of other works that generally do not have copyright protection include: • Titles • Short phrases or slogans • Procedures, processes, systems • Certain works of the United States Government

USING COPYRIGHTED MATERIALS IN THE YEARBOOKBefore including materials in your publication, contact the owner of the materials

and ask for permission (see Obtaining Permission). Even if something has not been published, such as a poem written by a student, it is still necessary to obtain permission before publishing.

FAIR USEThe concept of fair use offers an exception to the rules of copyright law and

copyright infringement. Under fair use guidelines, one is permitted to use a limited amount of a copyrighted work without prior permission, so as long as the material in question is used for purposes such as news reporting, education or editorial criticism/comment. Fair use may or may not apply to materials used in your yearbook based on a variety of factors including the context of use.

PUBLIC DOMAINCopyright does not last forever. Once a copyright expires, the work is considered

to be in the public domain and it is safe to use any of these materials without first obtaining permission from the former copyright owner.

COPYRIGHT INFRINGEMENTStudent journalists who use copyrighted material without permission (other than

what is acceptable under fair use and public domain guidelines) may be liable for copyright infringement. This can result in a lawsuit and legal penalties for both the publication and the school.

If a student journalist is found guilty of willful infringement — using material, without permission, when they are on notice of an effective copyright — the penalties can be even harsher. The court might issue an injunction prohibiting distribution of the material. The court might also assess damages and possible criminal penalties against the school if willful infringement is proven.

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USE OF COPYRIGHTED MATERIALS The following is a brief overview of some of the more commonly copyrighted materials with guidelines on permissible usage.

SONG LYRICSSong lyrics may be subject to “fair use” limitations if, among other things, the

material used is limited to a small portion of the work, the use does not reflect negatively on the work and no endorsement is implied in the use. However, even if the song lyrics in question fall under the “fair use” or public domain guidelines, it is appropriate to credit the author of the work.

POETRYYou can use brief quotes from poetry as long as the quote does not constitute a

substantial portion of the work. If you are unsure as to whether a quote represents a substantial portion of the material, ask to see the entire poem. Four lines of poetry are a small portion of an epic poem, but an entire haiku is less than four lines and, thus, should not be used without prior written permission from the author.

If possible, format poetry with the same alignment as the original and give the author credit for his/her work.

QUOTESBrief quotes are generally acceptable without prior written permission. You can

use quotes that are within the public domain without seeking permission. You can also quote public figures as long as you attach the appropriate attribution. For example, you can use a brief quote by President Trump from Time magazine, but be sure to include the citation.

TITLES OF BOOKS, SONGS AND MOVIESTitles are generally not copyrightable because they are by their nature not

sufficiently original. Titles of books, songs and movies are available to the public without compensation to the author. However, some titles may qualify as trademarks if they are used on merchandising items (see What Is a Trademark?).

CARTOON CHARACTERSAny cartoon character in a cartoon strip, TV show or movie may be copyrighted

and is potentially protected by trademark law as well as copyright law. Even if a student at your school draws a replica of the cartoon character, reproduction of the character may be inappropriate. It is best to obtain prior permission to use a cartoon character.

GAMES AND GAME BOARDSGames such as Monopoly,® Trivial Pursuit,® etc., are subject to copyright and

trademark protection and cannot be reproduced without permission. Making slight modifications to a game board or any other copyrighted material is most likely insufficient to use such material without permission.

Determining if a Work Is in the Public Domain

Effective October, 1998:• A creator’s copyright on

his/her work (in paper or electronic form) remains in effect for his/her lifetime, plus seventy years after his/her death.

• Copyright on works-for-hire (for example an article in a magazine where the creator received compensation) lasts for 95 years after the date of first publication.

• All works created prior to 1923 are now in the public domain, but subsequent revised, edited or updated versions could still be protected by copyright.

• Anonymous work may be protected by copyright and enters the public domain on the same basis as any other copyrighted material.

Search for work in the Public Domain:

Google, Yahoo! and Bing have advance search options that allow you to filter your results for works in the Public Domain.

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Photographs Downloaded from the Internet

Many people think that if something can be found on the Internet, it’s in the public domain. That’s not the case.

Some photographs posted on the Internet may be available for use without prior permission because the image may be in the public domain. When this is the case, you’ll see a statement stating: “The image (or other media file) is in the public domain because its copyright has expired.”

If this public domain statement is not posted, the image (or other media file) is most likely copyrighted material and you must obtain permission before you republish the downloaded photographs (or media file).

Tracking down the owner may be difficult. If you succeed, be sure that the person giving the permission actually holds the copyright to the photograph (or media file) and is not a copyright infringer.

If you’re looking at public image sites, such as Bing Images or Google Images, you must ensure the photograph is in the public domain (both services have search filters you can apply), or obtain a license to it, before downloading and using it.

APPS AND MOBILE GAMESCopyright and trademark rights apply and permission to use materials (graphics,

images, text, music, etc.) used in an app or mobile game must be obtained from the owner. Using an app, such as Pokémon Go, on the yearbook cover and throughout the yearbook as a theme may constitute trademark infringement and be a violation of trademark protection laws.

SOCIAL MEDIA SERVICES AND ICONSSimilarly, social media icons and the “look and feel” of social media services such

as Twitter, Facebook, Instagram, Snapchat, Pinterest and Tumblr are subject to copyright and trademark protection and cannot be reproduced without permission.

MAPSMost commercially produced maps, except some U.S. government publications, are

protected by copyright laws. The law covers any map published in print, on the Internet, on a CD-ROM, etc., and includes street maps, atlases, road maps, decorative maps, perspective view maps, wall maps, locator maps, cartoon maps and globes.

If you acquire a map for “free” from AAA, or some other source, the map is still protected by copyright. The name of the copyright holder and the word “copyright” or the symbol © is usually printed or displayed somewhere on the map. However, copyright law and copyright infringement penalties apply whether or not the copyright identification appears on the map.

SCHOOL PORTRAITS AND GROUP SHOTSStudent and faculty portraits and group photos, even those taken by a

professional photographer under contract with the school, are copyrighted by the photographer. As part of the contract, the school is generally given permission to reproduce these images in the yearbook. It is likely the yearbook staff does not have permission to share these images with others without first obtaining permission from the copyright holder. It is the responsibility of the school to ensure that it has permission to provide the photographer’s images to a yearbook publisher for that publisher’s use in creating the yearbook.

PHOTOGRAPHS OF FAMOUS PEOPLEPhotographs of celebrities are subject to copyright protection. The rights to the

photographs are usually owned by the photographer or the publisher of the photograph.

The copyright holder’s name typically appears along the side or bottom of the photograph. While you may be able to obtain the right to publish these photographs from press services or photo archives, using a celebrity photograph to sell or advertise a product or service may violate the celebrity’s right of publicity.

USE OF COPYRIGHTED MATERIALS (cont)

THE INTERNET All rights and issues relating to libel, obscenity and copyright and trademark fully

apply to the use of material posted on the Internet or taken from the Internet.You must obtain prior written permission to use material (written material,

photographs, videos, movies, songs, etc.) posted on the Internet before including that material in your student publication.

Materials that otherwise might be obscene or libelous when published in other mediums would likely continue to be considered obscene or libelous when posted on or taken from the Internet. Posting materials on the Internet may also subject you to the laws and regulations of legal international jurisdictions in countries outside the borders of the United States.

WEB PAGESAccording to The Student Media Guide to Internet Law, a website is copyrighted

just like any other type of original work and falls under the protection of copyright laws. Be careful not to assume that anything posted on a web page is in the public domain. Much, if not all, of the material may be protected by copyright and/or trademark law.

Copyright and trademark rights still apply and permission to use materials (graphics, images, text, music, etc.) posted on a web page must be obtained from the owner. This rule applies to social networking places such as Facebook and Instagram pages, too.

Remember, the owner of the posted material may or may not be the owner of the web page or website. Be sure to check the website for contact information to begin the process of obtaining permission before republishing any of the materials posted to a web page or website.

BRAND NAMES AND IDENTITYA company’s brand includes words, phrases, signs, symbols, designs or any

combination of these that identifies a product or service and sets it apart from other comparable products or services.

Trademark law is generally only a concern when a company’s brand is used in a way that would confuse a potential consumer. Brand names, company names, logos and other trademarked slogans and phrases should not be in the title of your book or on the front cover unless you’ve obtained permission.

It would be acceptable to show a photograph of Nike brand shoes (complete with the “Swoosh”) or use the words of the Nike slogan in a feature story on popular footwear worn by students. It would not be acceptable to copy a Nike ad to “decorate” a page or show the slogan in the typeface Nike uses and with the “Swoosh” without obtaining permission from the company.

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WHAT IS A TRADEMARK? A trademark is a word, name, symbol, device or any combination of these items

used to identify a product, service, brand or idea. Most trademarks carry one of these symbols: ®, TM or SM.

One of these phrases can also identify trademarked items: • Registered in the U.S. Patent and Trademark Office • Reg. U.S. Pat. & T.M. Off.

One purpose of trademarks is to identify the source of a product and give a representation of consistent and desirable quality symbolized by the mark. Any use of a trademark that is likely to cause confusion as to the source, sponsorship or affiliation of a product or that dilutes the strength or tarnishes the image of a mark could violate the trademark owner’s rights.

USE OF TRADEMARK MATERIALSTrademark protection means that trademarked materials cannot be used by

a third party for commercial purposes without permission. Depending upon your desired use of a trademark, you may be able to use

trademarked materials under certain circumstances. You should check with your adviser concerning this type of use.

DOS AND DON’TS FOR COMPANY LOGOSCompany logos are protected under trademark laws. What constitutes trademark

law violation, however, depends on how you make use of the logo and whether or not you include the required identifying trademark symbol.

For example, you can write that a student “loves Milky Way® candy bars.” But you can’t use this trademark as a theme for the yearbook, without permission. Similarly, showing a picture of a Nike tennis shoe as part of a section about student fads is not a trademark violation because you are identifying the product.

However, using a company’s logo, such as the Nike swoosh, on the yearbook cover and throughout the yearbook as a theme may constitute trademark infringement and be a violation of trademark protection laws, because Nike may claim that it appears that Nike sponsored or published the yearbook.

You can show a group of students hanging around a Pepsi machine drinking cans of pop, since the Pepsi symbol identifies the product. You cannot use a trademarked phrase from a Pepsi advertising campaign to help sell your yearbook.

®“Using a company’s

logo, such as the

Nike swoosh, on

the yearbook cover

and throughout

the yearbook

as a theme may

constitute trademark

infringement and

be a violation

of trademark

protection laws.”

OBTAINING PERMISSION If you want to use materials that are copyrighted or trademarked, you need to get

permission from the copyright or trademark holder. Here are some tips to follow.

FIND OUT WHO HOLDS THE COPYRIGHT OR TRADEMARK A published work may include the copyright holder’s name and address in the material. If neither is there, try researching that information at your local library or look up the ownership on the Internet. For example, search the websites of the United States Patent and Trademark Office (www.uspto.gov) or the U.S. Copyright Office (www.copyright.gov). Many libraries have directories containing publisher’s addresses, telephone numbers and/or email addresses. You may be able to obtain permission to use trademarked material from the corporation that owns the trademark. Visit the corporation’s website to obtain contact information.

CONTACT THE COPYRIGHT OR TRADEMARK HOLDERYou can try contacting the copyright or trademark holder by phone, but they may

want you to submit your request in writing. Include the following information: • Title, author and/or editor of work to be reproduced (text, photograph, music,

media files, etc.). • Exact material you want to use. For text, this includes page numbers, chapters

and amount. If possible, include a photocopy of the material. For other forms of media, ask the copyright or trademark holder what they require (a copy of the image, a video clip, a music track, etc.).

• Number of copies of your publication in which the material will appear. • Use of materials. In other words, where you want to include the material and

how it will be used. Include a copy of the yearbook page if possible. • Form of distribution. • Distribution location. • Whether you will sell the material. You may also want to do a Web search to see if a brand has a usage guide online. A usage guide may tell you if your use is permitted and provide do’s and don’ts on how to use it, or if it’s not permitted, may provide contact information or a web form for requesting permission.

PHOTO RELEASES A signed photo release may be required before you use a photograph or other

visual image of an individual in your school publication.

WHEN THEY’RE REQUIREDSigned photo release forms are required when an individual is visibly recognizable

in a photograph, video, movie or other visual media format if used in a commercial advertisement. Displaying these images, if privacy rights were not violated, on non-advertising pages of the yearbook is generally not a commercial use of the images and does not require a signed release.

If the individual is a minor, the signature of a parent or guardian is required on the photo release form.

Maintain a file of signed photo release forms and include a reproduction of the image associated with each signed release.

WHEN THEY’RE NOT REQUIREDIf the image is used in non-advertising content, signed photo release forms are

not needed when subjects are in public places such as public school hallways, the school grounds/campus, school sporting events, parks, public streets, etc. Crowd scenes, taken at public performances and sporting events, where no single person is the dominant feature are also exempt from the photo release requirement.

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Allow Ample Time to Receive Permission

If you want to use copyrighted or trademarked material, make the decision as early as possible and immediately apply for permission to use. Allow sufficient time for a response. It may take a month or more to receive a reply. Also, the copyright holder may have questions or need assurance on some of the points of your request, thus delaying the turnaround time on your query.

The copyright holder may want to charge a fee for using the material. You may receive permission to use the material with some restrictions. It is very important to carefully observe those restrictions to avoid delays in your publication. Submit a copy of the permission to use document to your printer along with protected material. Then, your printer will know you have the right to use the material and completion of your publication will not be affected.

yours truly yearbook

B E A C C U R AT E . B E F A I R .

B E L E G A L .