From the Legal Hotline (877-NEWS-LAW)

Marsy’s Law, commemorative plaque copyright issues and more in today’s Legal Hotline recap.

Q. Would you happen to have some type of form for a non-compete agreement?  I am not looking for anything too in-depth or limiting–just 6 months to a year.

A. We do have various form agreements that will depend on your unique circumstances. Here is a good example of a general non-compete.

Feel free to use it as you see fit but you may want to ask your own counsel for input, as well.

Q. I have a reporter working on a crime story about a man charged with making threats to a law enforcement officer and aggravated stalking–both as misdemeanor counts.

After waiting for the police department to finish its redactions, the reporter was given a report this afternoon which excludes the alleged victim’s name.  We did learn from them, however, that the alleged victim is a sitting judge here.  We got his name from the clerk’s office website.

The police department told the reporter he didn’t want his name released.  We have not confirmed that and do not know if it is true, or if the PD is acting in an abundance of caution, given the fact this is a judge we are talking about.

So, what’s the current status on Marsy’s Law?  I feel the victim’s name is not exempt.  We will not, however, disclose his address nor ID the area in which the threats took place.

Are we in the clear?

A.  You can publish the judge’s name if the paper obtains that information legally, which you appear to have done (by piecing it together I assume from the clerk’s website and the arrest). In the Bartnicki decision, the U.S. Supreme Court basically said if you obtain the information legally, the government can’t prevent you from publishing it. I don’t think Marsy’s Law would prevent you from publishing the name–it only limits what the government can do, not what a newspaper can report.

Q.  We are a paper on a barrier island in Florida.  I just took a call from a city hall staffer indicating the city manager has issued an order to remove all news boxes from their locations, due to the impending storm. Currently, neither our city nor our county and other areas in our vicinity is under any storm watch or warnings, nor are there any city evacuation orders.

We have no plans to comply with this directive.   Experience since 2001 indicates our news boxes tip over in strong winds, at the worst.   Even with a storm surge, the boxes are found later in place, not having drifted or migrated from their original settings. They present no safety threat, based on solid ownership experience in this location.

Within our city’s jurisdiction, we have complied with registration and placement of news boxes pursuant to city ordinance providing that ballast in the news rack base is an option to a removal order within 24 hours of evacuation order – which we have selected for all our news boxes.   This clearly seems to provide options to any such removal orders.

We see the possibility of the city’s retaliation via removal and damage to our approximate 30 news boxes, fines, and subsequent interference as infringing on our ability to exercise any freedom of the press rights we may possess as a community newspaper.

Your assistance in providing direction via appropriate statutory references to us and our lawyers would be appreciated, if possible.   Your expertise may assist getting our legal team up to speed on the issue.  Any other thoughts in preparation for this unfortunate pending conflict are appreciated.

A. I scanned the version of the ordinance adopted in November.  It says “all racks shall be removed within 24 hours of an evacuation order that includes [the town]; or, be anchored by one of these methods: i) ballast to maximum level possible within base of the news rack; or ii) be anchored to a concrete pad [with certain specifications].” [Section 6, para. (c)(1)].

According to the ordinance language (as you note), you are only required to remove the racks in the event of an evacuation order (which does not exist currently). Further, even if one is issued, you still have the option of maintaining your current racks if they are anchored in one of the two ways mentioned.

If you haven’t already, you might let the city manager, mayor, vice-mayor and city council member know about the CM staffer’s call to you, and why you object to removal, which you articulate in your email very clearly (e.g., your racks are registered and comply with the ordinance, the history of them not moving in storms, the current anchoring that complies, etc.)

I would point out that the directive is inconsistent with the city’s location standards and also violates the well settled “right to distribute newspapers through news racks …as protected under the First Amendment.” Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666. 1196 (11th Cir.1991) (“…our circuit has joined  an increasingly lengthy body of Supreme Court and federal precedent emphasizing that there is ‘no doubt’ that the right to distribute and circulate newspapers through the use of newsracks is protected by the first amendment.”).

You might let the city know that while you have and will continue to take every precaution to comply with city standards and the safety of property and the public, you are very concerned about any action that would penalize or interfere with the news racks, where they comply and present no threat.

For additional legal support on the important function of news racks and the case  law providing guidelines for ordinances regulating them, see the NAA Manual “Newsracks: A Business and Legal Guide for the Distribution of Printed Material by Vending Machine.”

Q. It’s been brought to my attention that there is a company in our city that  produces commemorative plaques with newspaper content.  I understand the company has been selling our weekly business features, mounted on wood, to the featured businesses each week, for years.

As far as I can tell, they just have a digital subscription to our newspaper and thus access to our pdf versions, which they use to create the wood-mounted articles. They credit the newspaper on a little plaque with the date of publication.

This is copyright infringement isn’t it? Can you help me understand how they can do this? Many other newspapers are affected.

A. This is an ongoing problem. You are correct that they are infringing on the paper’s ownership of the copyright in the written material and rights to the logo/marks. Some papers want to prevent this and others not so much (as these types of commemorative products may indirectly encourage people to appreciate and to read the paper). Others do not like it not only due to copyright issues but also because they sell their own plaques.

If you want to object to the practice, I’ve been suggesting the following short letter/email–

The [newspaper] is the owner of the copyright in certain published articles as well as the trademark and design of certain marks the [newspaper] has been using since _______.

It has come to our attention that your company has been using such [newspaper] material and marks in connection with plaques for sale for quite some time. The use of this material constitutes copyright and trademark infringement. The consequences of such infringement are significant.

We hereby demand that you cease and desist from using, copying, or displaying [newspaper] copyright material and marks.  Please respond to this email by _________ to confirm that you have ceased using this material.  We would prefer to avoid litigation over this matter but reserve all rights and remedies available under law.

Thank you for your attention to this matter.

Q.  One more item about the above…I spoke to the plaque business owner and while she was largely defiant about their right to use their digital subscription to the newspaper, which has a print option, to produce these pages and plaques, she also did say she would accept a cease and desist letter. I suggest all the Florida Press newspapers get on board with this. Any  thoughts?

A. I know that in other cases, they ultimately stop this practice but you may have to keep after them, as you have been doing.  Also, if they have been using your material for a long period of time, it seems like damages could be available under the copyright statute.