A Quick Look at the Law and Community Media (PEG) Programming By Kohel Haver and Martin Medeiros
Presented at the Alliance for Community Media International Conference, July 7, 2006, Boston, Massachusetts
Community media by cablecast is PEG's primary media and is legally different from broadcast, which uses the public airwaves. The community media viewer requires a cable service connection to receive the signal. This has limited the reach of our programming. But that is changing. Because of the growth of digital technology, many communities are exploring or implementing video streaming over the Internet. This makes the programming available to a world-wide audience and, potentially, world-wide legal exposure.
When the various distribution systems – cable, telephone, wireless --were isolated in the various states, they operated under different sets of local laws with the limitation of the system. Now these systems are converging and becoming interconnected and competitive with one another. Content may cross over Internet, telephone or wire network and from producer to Internet to mobile handset – and back again.
The law that enables the PEG centers is, for the most part, federal but state law and local jurisdictions enable the stations. Breaking free of the cable wire makes the whole discussion on legal issues more complicated. Community media used to be limited by the reach of the local cable operators. With this new convergence, programming is available everywhere, at the time preference of the viewer.
The general goal in producing programming is to have your program viewed. In the process a producer does not want to unintentionally violate the law and lose his or her soapbox. In order to not violate the law, it is important to become familiar with the laws that affect a community program producer.
Copyright is a federal law under the United States Code title 17. Copyright protects the monopoly right of authors, artists, musicians, filmmakers and others in their writings and creations. The underlying purpose of a copyright is to encourage authors to create by granting them the exclusive right to control their writings and creations in several ways. In addition to the right to make and distribute copies, there is the exclusive right to perform, display and make derivative works. The right to make derivative works deals with the right to make new works that modify or include the original work.
Because the copyright comes to life as soon as the work is created one should presume any found material is owned and controlled by someone else and should not used without permission. Anyone who uses copyrighted materials without permission of the copyright owner may be considered an infringer of the copyright holder's exclusive rights and may be subject to liabilities under the law up to $150,000 per infringement and pay the costs and attorney fees expended to chase you down and sue you.
There are some limited circumstances where it is acceptable to use material belonging to someone else without permission. News reporters, commentary, scholarly or educational work can copy work for those purposes, without asking, but just what constitutes these works is a
complex question and the courts have come up with a number of tests and circumstances as to exactly what “fair use” of a copy written work entails. For most of us, the easiest way to use someone else's work is to ask permission from the person who owns the copyright. This permission may oral, but it’s better to have something in writing signed by the author. These permissions may be called licenses and they can be limited to certain specific circumstances and times or it may be extremely broad, depending on the agreement between the copyright owner and licensee. Implied in the use is that the person giving you permission owns it. This may not be the case.
Many producers chose to use music in their programming or in video soundtracks. In this situation, the credits of the movie generally indicate that the song has been used with the permission of the copyright owner. You can get permission to use commercial music by getting a license from a company like Harry Fox if you want to add music to a film or video it’s called a synchronization license and you'll have to contact Harry Fox or the publisher directly. You can also choose to include original music in your production. In this case you'll have to find a musician and close the deal. The right to broadcast music is different from the licensee to make and offer the recording. Performance licensing groups like ASCAP, BMI and SESAC can help you get the right license.
Other examples of licenses include: using photographs printed in magazines, recording musical performances and using a portion of someone else's video production in your own video production. In each case you need to obtain permission from the copyright owner (i.e. the magazine that published the photograph, the performing musician and the producers of the other video production).
Trademarks may be words, sounds, shapes, “look-and-feel” or images used in connection with a trade, service, or product. Trademark law is very old and very much part of American and English law. It is rooted in the consumer's right to know the origin of the products and services it buys. Trademarks that are used in several states are usually registered federally with the U.S. Patent and Trademark Office. Less widely distributed trademarks might be only registered on a state level. The trademark laws can be governed by both local (state) law and by federal law.
As well as protecting the public from being confused about the origin of goods or services related laws protect consumers from other unfair business practices such as untrue or unfair statements about a product or service. It is not fair to benefit from one’s effort and investment in establishing a name unless the parties agree and terms are struck.
Trademark laws also cover product disparagement and tarnishment, or debasing the image of the product in the marketplace. Producers having a perspective on a brand it portrayal or comment must always get their facts straight. Trademark law can be used to stop a producer from making untrue statements about products and can prevent the use of a mark to create the impression of an endorsement where there is none.
Simply stated, a contract is an exchange of promises -- a bargain agreed upon by two or more persons. An example of a contract was discussed above when one asks for permission to use copy written works. Generally, it can either be written or oral. It's always easier to prove or recall the content of a written agreement. Therefore it's recommended to put everything in writing. It's not always possible to do this so there are few sub-optimal ways to do this.
Contemporaneous notes are pretty good documentation of a conversation but a confirming note strengthens the conversation. These can take the form of a thank you such as: “thank you for letting me use that photo on your website in my production that will be cablecast and webcast”; “thank you for giving me permission to film on your property on the 27th”; “I promise to return the property to the state we receive it” etc. Always keep a copy of any confirming e-mail, letter or note you send for later reference. If you don't send the letter, old notes are better than no record of a conversation at all. The further you get away from a formal contract, the higher the risk.
A breach of contract occurs when one of the parties to the agreement doesn't follow through with what was promised. For example, when you borrow video equipment from your community media outlet you agree to return it subject only to minor and ordinary wear. You would breach the contract if you did not return the equipment or if the equipment was damaged when you returned it. You also breach a contract by making and selling DVD’s that include music only licensed for broadcast.
3.1 Indemnification Agreements
An “indemnification agreement” is a type of contract where you agree to step into the “shoes” of someone else and agree pay for any damages resulting from your actions. For example, if a contributor provides stolen content to a producer, and if that contributor agrees to stand behind the content (e.g., indemnify the producer) the contributor will have to defend the producer if a lawsuit is brought by the owner of the content. For example, when you ask if you can use copy written material in your production from someone you thought was the owner, you may be asking someone who is not the owner and the real owner will come after you.
In the context of cable access stations, when you are certified to use facilities you will sign an indemnification agreement with the access center. If the access center is sued for something in your program, you agree to pay for the legal defense of the access center. Also, when someone co-signs an equipment loaner agreement that person agrees to be liable for your failure to return the equipment.
4.1 Privacy Issues -- Invasion of Privacy
Invasion of privacy generally deals with the unlawful disturbance of a person's privacy. People and businesses have a right to be left alone. The nexus is a person’s expectation of privacy. Certain situations cloak individuals and businesses with a right to privacy and any intrusion of that right would violate the law. If a producer has to go through things out of the ordinary that interfere with an individuals comings and goings, know the laws in your locality as different states may have different standards.
4.2 Public Disclosure of Private Facts
“Public disclosure of private facts” is the revealing of the intimate details of someone's private life to a large number of people without his or her permission. Generally the more public a persona involved the less private the details of their life will be. The theory is that persons who live by the spotlight are subject to its intensity. In some communities information is cable cast regarding who was “picked up” for soliciting prostitutes, public urination or who was arrested for driving drunk as these records may be public. In others that information is kept private. It is important to know what the “public record” is and what the standard is in that locality.
4.3 Use of One's Name or Likeness
The unauthorized use of another's name or likeness may be an invasion of privacy. The unauthorized use of another's name or likeness for monetary gain is one of the most common examples of this. Think of a person as a business where they “own” their name and likeness, the greater the good will and notoriety of their name or likeness, the higher the value. And the more unfair it is to benefit from using that person’s name or likeness without permission. For example, Joan Smith could not name her fitness center “Michael Jordan's Fitness Center” unless Michael Jordan allowed her to do so as the celebrity name “Michael Jordan” is used to attract people to the fitness center an association implied where there is none.
4.4 Publicity Placing One in a False Light
Publicity that creates a false impression of another person may also constitute an invasion of privacy. You cannot lead people to believe that a person has views that he does not really have or has done things that he has not actually done. False light would be showing photographs of demonstrations, suggesting that everyone depicted was a participant when in fact you know not everyone in the photograph was involved. Distorting the truth or facts and portraying them as truth happens in the news, political campaigns and other media relations. The issue is the specific facts, the extent and other complex factors determined by statues and court decisions in various jurisdictions.
4.5 Intrusion into One's Seclusion or Solitude
This last method of invading one's privacy involves a person intruding into places that are normally considered to be private. Cable casting photographs of a person in his or her private space with conversations recorded with hidden microphones would be an unlawful invasion of privacy.
One way to avoid problems in this area is to identify yourself as a video producer and inform people that the videotape you are making may be cablecast. To be safe, you should obtain written permission of the subjects of you programming when there is a chance someone may consider your videotaping an invasion of their privacy. The problem is not in the making of the tape as much as it is with the later cable casting of it. The news ambush is almost always done on a public space and in some situations permission may not be required (commission of crime). The working rule for independent producers is not to invade private spaces.
4.6 Libel and Slander
Libel is false material directed at an individual, usually in print or fixed format (television and film are considered fixed formats). The false material must tend to injure or harm a person's reputation in order to be libel. The victim must be able to prove damage to his or her reputation. Generally, the more public a figure is, the more difficult it is for them to prove the statement damaged them. You hear lots of what might be defamatory statements about politicians and actors. This comes from the case NY Times v. Sullivan. Sullivan was a politician and the Times printed a story about his honesty and integrity and court the court said it was not actionable. This is a very complex area of the law and you should be careful when making cavalier comments that could backfire getting your work silenced, or have you spend time in front of a jury.
There are certain types of statements where one would not have to prove damages to reputation. This is the area of defamation and defamation per se specifically they are statements about having a loathsome disease, statements suggesting criminal activities, inability to perform one’s profession and others. Generally don't say anything you can't substantiate. Truth is usually a good defense but what may truthful and not defamatory, can violate one of the privacy torts listed above.
Slander is similar to libel but concerns things that are not in a fixed format; things we say. Both involve false material that tends to injure or harm a person's reputation. But slander, however, is auditory, as verbal statements or statements over the radio.
What is defined as obscene is subject to local law. What would or wouldn't play in Peoria is very much the issue. Some states will allow use of what is known as the “Miller test” from the case Miller v. California which was decided by the Supreme Court in 1969. Miller said, in essence:
Material that, when taken as a whole, the predominant appeal of which to the average person, applying contemporary community standards, is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion; as a matter that taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters without redeeming social importance.
The Miller test does not provide anyone with a bright line or yes/no guideline on obscenity. Moreover, while there might be a good First Amendment argument to be made two other events will occur. First, a rain of trouble will fall on your access center and the community that funds it could be called into question. And, if it does go to court, you will have to rely on someone's deep pocket or the empathy of a civil rights organization to take on your cause. This latter strategy is risky strategy at best.
Rather than attempting to provide examples of obscene material, or analyze your content under the Miller test, it may be best to remember Justice Potter Stewart’s famous quote about pornography: “I know it when I see it.” Every access center should have rules regarding adult material and agreements to respect their delicate position. Restrictions on the time, place and manner of any questionable material is a sound practice.
Also, if you cablecast obscene material, you could be held criminally liable in various jurisdictions based on the local standard of the community. In addition, this also would be a violation of your agreement with your local access center, which could lead to a suspension of privileges with the station. We do not know of a case where a citizen of one state is dragged into a more conservative state for criminal prosecution based on distribution of obscene content, but the Internet makes that a real possibility. Finally, it is a very serious and hideous crime to show any nudity, whatsoever, of minors. Even if the wrong is unintentional or not “prurient”, for example, if you were lied to by a minor about their age who appeared in a medical documentary that portrayed nudity, such a portrayal may result in lengthy jail time and being listed as a registered sex offender on the Internet for the remainder of your life.
In addition to federal and local law, you are also subject to the Operating Rules and Procedures, the contract you have with your access center. Producers must take full responsibility for all content, or they will be compelled to do so by the law.
Media access is a great privilege in the United States with a corresponding great responsibility. It is important for people to protect themselves and those with whom they work by knowing the rules. This summary of the typical laws and rules that community producers must face is not a complete listing of all laws and rules that may affect you and should not be relied upon as legal advice. Be innovative and creative and be sophisticated about your access to the media. If you have a question, ask your lawyer.
Kohel Haver is past Chairman of Portland Community Media in Portland, Oregon www.pcmtv.org. Currently partner at Swider | Haver