Legal Update

From the Legal Hotline (877-NEWS-LAW)

Vintage photo copyright, public record exemptions and more in today’s Legal Hotline recap.

Q. Hello, I am a free-lance correspondent and in the past I have purchased newspaper pictures on eBay from another vendor and was wondering if I could reprint them in a local historical society publication? The eBay seller addresses the copyright issue as follows: “This vintage photograph is offered for sale as a collectible item and conveys no transfer of copyright.”

I originally assumed I could publish these photos in the historical society book since I purchased the original photo. When I read the copyright disclaimer, I thought perhaps I could just ask the newspaper (in writing) for permission to publish the photos. However, the advice I got from a professional museum person was it’s best not to publish these photos or even ask for permission to do so because then you are on their “radar” for possible copyright violations.

I’d really like to know what the newspapers are doing about these photos from their archives that have been sold on eBay (apparently with their permission). Can I publish them? Is there a procedure for getting permission to publish? It would be great to hear what the Florida Press Association says about it.

A. First let me address the vintage photos that are found in the newspaper’s archive. Some Florida newspapers like many around the country are in the process of digitizing (scanning) the older archived photos and have apparently contracted with third parties to scan the photos and gradually bring them on line in a searchable database. While hundreds of thousands of photos have been digitized thus far apparently only a small percentage are from the 1950s or earlier.

In order to republish these newspaper-owned photos, generally you will need permission from the newspaper. There is a “fair use” exception which is a case-by-case doctrine based on several factors including how the photo is to be used. For example, if the photo is used for “nonprofit educational purposes,” this cuts in favor of the fair use exception. Here, the photo will apparently be used solely for a local historical society publication so FU might be applicable in this case.

But, again without fair use, the republication (for anything other than just personal use) of the newspaper photos (even those purchased from a third party on eBay) will require permission in the form of a license. Many larger newspaper websites explain (e.g., in a series of questions and answers or online tutorials) how to go about searching for a particular photo and entering into and paying for a license and obtaining a high resolution copy. See for example, Their license fees are based on how the photo will be used. If the photo cannot be located in the database, there is a phone number you can call to try to locate it and obtain the necessary permission.

Turning now to the specific photo that you reference (shuffleboard photo), this does not appear to be a newspaper-owned image since the back of it indicates it is a 1957 photo from the “files” of the City of St. Pete “Publicity Department.” So, the newspaper probably will not include this photo in its archive of images—although it may. In the question and answer, the newspaper in question (Tampa Bay Times) says “handout photos from organizations do not belong to the Times and are not being entered into this archive.”

I think the fact that the photo was apparently taken by the City probably means it is unlikely anyone would care if it was republished. I also think this supports the “fair use” exception.
So the bottom line is that while purchasing a vintage-type photo from an eBay vendor will allow for personal use, it does not allow for republication. Generally, you will need permission, probably in the form of a license, from the newspaper-owned vintage photos (absent fair use applying). Finally, for the shuffle board photo, this appears to be a City-taken photo where it is unlikely that the original photographer will come forward with a copyright claim, and even if a claim were made, fair use may apply.

Q. As you recall from a previous hotline question, our newspaper is running salaries of city and county personnel, including name, gross wages, retirement benefits, etc. Another question has come up regarding this request. Specifically, the county says that while employee names and gross salary information is public record, the other information pertaining to payroll deduction records are confidential and exempt based on section 1012.31(3)(a)4., Florida Statutes. Further, records identifying government employee participants and their account activities concerning tax-sheltered annuities or custodial accounts, including accounts commonly referred to as section 403(b) accounts, are confidential and exempt. See Section 112.21(1), Florida Statutes. Also, information concerning deferred compensation programs under the Florida Retirement System or other retirement system which identifies individual government employee participants in a plan and their personal account activities are confidential and exempt. See, Section 112.215(7), Florida Statutes.

Based on the above, the local government sent an Excel spreadsheet with only one column of information — gross wages only! Is this correct?

A. I wanted to reply in reverse order. Regarding the last paragraph about the exemption for government employee annuities and retirement deduction activities, this language only makes confidential records “identifying individual participants in any contract or account” and “their personal account activities.”

I think you could argue that annuity agreements and other information (such as payments into the account or exit checks) would be open so long as the above individual/personnel information is kept confidential. Perhaps this can be done by the county redacting any information that would link the document to a particular participant? This might be especially appropriate if you limit your request for this information to just the county commissioners and higher staff—i.e. an aggregate number for all.

Regarding the school employee payroll deduction information in the first paragraph, is there a way they could supply the information without identifying the employee? Not sure if that’s necessary for all school employees—but again maybe you could limit your request to just “all school board members, etc.” and get an aggregate number?

But the fact remains you probably want to list the employee names–anonymity won’t work. In that event, we asked Barbara Petersen for her view–she has requested this information in the past from all constitutional offices/offices. Barbara indicates that if you are wanting to know the name and salary of each school board employee (among other information), she suggests you might request a lump sum of salary deductions — for example, John Doe, gross salary $47k, salary deductions $2.5k. Perhaps that would work? She is not sure, though, whether the school board would be required to give you that information — the public records law requires the board to provide you with access to records, not with information. But having done payroll more than once, Barbara believes most spreadsheets give you the gross salary and a lump sum of salary deductions.

Further, Barbara believes the citations above are correct and may protect the specific information you’re seeking on each individual employee. And, it is correct that the exemption applies not to the information on deductions but to the identifying information of each employee. So, Barbara’s view is that it’s sort of a conundrum in that you either get the specific deduction information w/o identifying information or you get the identifying information w/o the specific deduction information. Does that make sense?

Finally, in your email, you said you received a spreadsheet with only one column — did you get the name of the employee and the gross salary? FAF conducted a statewide compliance audit in 2011 asking for basically the same information you’re seeking, although their request was limited to name and salaries only. Barbara checked her records — the request was made to the superintendent of your county schools, on two separate occasions, but we did not receive a reply of any kind.

Q. Does Florida law regarding municipal budgets require that amendments be posted on their website?

A. Yes. If a municipality amends the budget, the adopted amendment must be posted on the official website of the municipality within 5 days after adoption. If the municipality does not operate an official website, the municipality must, within a reasonable period of time as established by the county or counties in which the municipality is located, transmit the adopted amendment to the manager or administrator of such county or counties who shall post the adopted amendment on the county’s website.

Q. Is there a “legal” reason why we need legal ads to be a link at the top “nav array” on the newspaper’s website homepage?

A. The law requires that “a link to the legal notices web page shall be provided on the front page of the newspaper’s website that provides access to the legal notices.” Based on this language, we advise newspapers that they must have this link on the front page and usually that means the navigation at the top. See 50.0211(2).

Q. I’ve heard one of the county school districts is selling email address lists (of teachers/staff) to car dealerships and others who then do “email blasts” to the teachers/staff to solicit business. Any thoughts?

A. We again reached out to Barbara who has seen this sort of activity before. She does not think it’s illegal but it certainly is bad public policy. She points to a legislative session several years ago when Tom Feeney was House speaker when a bill passed late in session that allowed the state to sell driver license photos which are, incidentally, exempt from public disclosure. The bill allowed the sale of the photos to a company that had developed check cashing software — you slipped in a check and up popped the DL photo of the account holder. The backlash was significant as you might imagine and I think FAF took a stand against it — government should not be in the business of profiting from the sale of public records. The law was repealed early in the following session. If you’re interested, she can check her files and see if she has any correspondence on the issue.