“For too many journalists, one lawsuit could bankrupt them or their newsroom.” –Josh Stearns, GR Dodge Foundation
Photo credit: “A Bridge to Nowhere” by Paolo Crosetto on Flickr, used via Creative Commons Attribution-ShareAlike 2.0 license
In our 9 year history providing legal services on over 1400 individual matters, we’ve tracked a significant convergence in the legal needs of journalists, creators and entrepreneurs. This convergence is the result of the rise in the importance of nonprofit and independent projects and the common use of the internet as the means of distribution. As a result, a common set of core legal issues has emerged among journalists, creators, and early stage tech entrepreneurs. We share the top 10 areas of convergence below.
Right now, to help meet this need, we’re leading efforts to revitalize and grow the Online Media Legal Network. Once based at the Berkman Center, it represented the kind of geographic and expertise diversity that’s necessary for these projects to flourish. The disappearance of this network, as well as other support projects like the Stanford Fair Use project, has been a step back in critical support services.But as much as we value a good list, this is not an academic exercise. The reality is that these areas of convergence represent a huge unmet need for legal services desperately in need of effective infrastructure to help a wide variety of independent media and creator projects find the affordable legal services they need grow.
We’re looking for partners to help us revitalize and grow the OMLN, which will also help us better address the 400-500 legal requests we receive each year. This is just one way to begin to address the common legal issues we outline below. If you know of a funding partner that is interested in making sure journalists, creators, and entrepreneurs’ common legal needs are met, please send them our way.
Top legal issues that today’s journalists, creators, and entrepreneurs have in common.
10. Defamation, Privacy, and Accuracy of Information – The best independent journalism projects, bloggers, filmmakers, early stage nonprofits, and artists share work that shines a light onto the practices of the most powerful individuals, businesses and governments in our world. But shining this light requires being accurate with the information that is published online, and compliance with a web of state and federal privacy laws. Without the services of an in-house legal department to do a pre-publication review, and often without an entity as a shield, many assume enormous personal legal liability when they share controversial work. Dealing with defamation and privacy issues before a work is published, and having somewhere to turn when disputes arise can help make sure a project doesn’t die on the vine.
9. Access to public records – Journalists need access to public records, but so do documentary filmmakers, researchers, historians, archivists, and a variety of entrepreneurs and nonprofits trying to take raw data and turn it into actionable information. Accessing this information requires untangling a complex web of state and federal law. With the help of an attorney not only can navigating this web be a bit easier but in the common case where a lawful request was denied; an attorney can bring formal litigation to ensure the release of records.
8. Recording laws – When can you audio or video record someone secretly? When do you need a release? Then, once you make your recording, how are you able to reuse that recording and the image of any individuals? Photos, video, and audio are the preeminent multimedia of our day, so knowing the rules around their creation and dissemination has become critical to everyone who shares multimedia online. This is typically state law which means multiple lawyers may need to be consulted about laws in different states. Without an effective network creators can plug into for advice, all too often they “wing it”, only to end up running into expensive legal problems later.
7. Responding to illegitimate takedowns – We rely on a private intermediary services to share content with each other such as websites, apps, and webhosts. Unfortunately, bogus content takedowns often falsely rely on copyright, trademark, and a variety of abusive terms of use violation claims. Many intermediary services will quickly remove content to avoid liability. Navigating each service’s appeals process, and making the legal arguments to get your otherwise legal content restored is not always easy. Negotiating with service providers and claimants to restore legitimate content often takes an experienced attorney explaining the user’s legal position. Without that assistance, in addition to content removal and the risk of related lawsuits, a key consequence of takedowns is that a user can have their account permanently terminated, silencing their voice.
6. Reducing liability as an intermediary – Acting as an intermediary for user generated content; even with legal shields available to protect services from the illegal behavior of their users can be a tricky an expensive process. While some safe harbors, such as the Communications Decency Act section 230 Immunity are more automatic, complying with the Digital Millennium Copyright and state privacy laws often requires the assistance of a local specialized attorney to draft key documents such as terms of use and privacy policies but also to provide practical counsel on how to process DMCA notices. Without this help it is often a question of when and not if services will face business ending litigation. Without a network of skilled attorneys to reach out to not only are services unable to find attorneys in the first place, but they are also unable to find litigation counsel to assist them when things go wrong.
5. How to properly work with independent contractors and employees – Many early stage projects rely on independent contractors. A well drafted contract sets the expectations with independent contractor, including who owns what the contractor creates, how much and when they’ll be paid, and what exactly the contractor will be doing. As any journalism, creative, or tech startup grows, more folks become employees, and the patchwork of many state specific employment related laws kicks in. This is another area where individuals and early stage entities will often “hope for the best” instead of seeking out legal counsel due to cost.
4. Intellectual Property and Licensing – Today’s independent artists, filmmakers, and journalists are plugging in to existing distribution channels, accessing audiences and sustaining their work through licensing deals. Understanding how intellectual property law works, particularly copyright and trademark law, is one way that today’s journalists, creators, and entrepreneurs sustain and grow their work. The Knight Foundation, in its report Gaining Ground: How nonprofit news ventures seek sustainability, recently noted that early stage nonprofit journalism projects appear to focus primarily on content production until they reach a budget of $500,000, where the larger portion of budgets start to go marketing, development, and technology expenses. We can confirm this experience on the ground. Many of our most successful nonprofit journalism clients, as well as creative clients like filmmakers, understand that one of their most important assets is their intellectual property, but they aren’t always experts in contracts or licensing. Attorneys can help make sure that the deal presented in a contract actually reflects the client understanding and is appropriate given their business model.
3. Forming an entity – The proliferation of smaller entities and individual journalism and creative projects leads those projects to ask the same questions startup entrepreneurs must ask. Setting up your entity sets the tone for the entire organization, and mistakes at this stage are costly. While some DIY services for business formation exist, we’ve seen many businesses that made critical mistakes using DIY services at this critical early stage. Correcting these errors can be more expensive than getting proper legal counseling the first time.
2. Review & drafting of many, many types of contracts – In addition to licensing and employment contracts discussed above, journalists, creators, and tech startups share the need for review and drafting of many types of contracts. This includes insurance contracts, foundation and government contracting agreements, fiscal sponsorships (when projects are incubated within larger nonprofits), software and API licenses (open source and proprietary), open source content licenses such as Creative Commons. Without easy access to knowledgeable counsel, many creators will sign unfair or even abusive contracts that could tie up their project for years.
1. Fair Use – Andy Warhol said “good artists borrow, great artists steal.” It may not be as catchy of a quote, but many great journalists, creators, and startups understand their rights to reuse content without permission. Understanding and exercising fair use allows us to engage in social, cultural, and political dialogue. It’s a critical safety valve to the broad protection and extremely long duration of copyright law. But as far as laws go, it’s on the complicated side. When journalists, artists, filmmakers, and startups want to share new perspectives and world-changing ideas, a quality fair use analysis can make that happen. Moreover, many filmmakers and journalists need a fair use opinion from an attorney to obtain insurance and be picked up by distributors. But the reality is that only a small number of attorneys in the country are experts in fair use law, and when you narrow that list to folks willing to work on a reduced fee basis that number shrinks considerably and clients never find the legal services they need.
Rather than treating journalists, artists, creators, and startups as silos, let’s recognize the common legal issues faced across all of these groups, and find ways to address the growing demand for legal services by building key legal infrastructure.
If you’re interested in working on this issue you can reach out to me at art @ newmediarights.org
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