Journalism Ethics

I am please to announce that I began teaching Journalism Ethics this semester at Kent State University.

Local Publishers Must Protect Their Brand

Local Canton advertiser Papa Ads, Inc.learned that hard way that its iShopStark.com did not have a strong enough brand name to protect itself against the upstart “StopNStark.com,” a federal court ruled in Ohio on June 13, 2012.

Brand names act like adjectives. They tie the source of the product with the provider of goods. For example, think, “Tide” brand detergent, “Honda” brand cars or “BMW” brand cars. Names such as Honda and BMW help consumers distinguish one type of automobile made by one manufacturer compared to another. When you use your brand name, you want customers to think of you as the source of the product, not a competitor.

Papa Ads, Inc. launched “iShopStark.com” in 2007 in Canton, Ohio.  It offers product reviews, price comparisons, and coupons in the Stark County metro area. In 2010, Gatehouse Media, owner of Copley Ohio Newspapers, launched ShopNStark.com in the same area, offering the same services as iShopStark.
Papa Ads sued Copley, claiming that the new site infringes Papa Ads’ brand name and is causing confusion among the public. State and federal laws protect businesses’ brands when another business uses a similar brand name to confuse and poach customers. Papa Ads never registered its trademark with the United States Trademark Office. Papa Ad filed under the federal Lanham Act, which protects businesses against the unfair deceptive trade practices against other business that may use a similar brand name to confuse the public for similar goods or services.

The United States Court of Appeals in Cincinnati ruled that Papa Ad's iShopStark brand was not distinctive enough to prevent Copley from entering into the same hyperlocal ad space with its “ShopNStark” name.

The Court of Appeals noted that Papa Ad’s “iShopStark” was associated with a geographic area, namely, Stark County, Ohio. Copley’s use of ShopNStark similarly described shopping information for those located in Stark County. Papa Ads did not acquire a “secondary meaning” with its users, which the court observed "no longer causes the public to associate the goods with a particular place but to associate the goods with a particular source. ” 

Local media operators must get consumers to associate their brands with them, and not merely emphasize that it is a site focused on a geographic area.Steps media operators can take include strong branding on their sites (including the use of a logo) and strong promotions about their brands.

Communications Majors Rank High in Earnings

Communications and journalism degrees are in the top fifteen college majors ranked for earnings, according to a new study by Georgetown University. The study, "Not All College Degrees are Created Equal," by the Georgetown University Center on Education and the Work, listed the top 15 college majors by earnings as follows:

The top fifteen majors are listed as follows:

Top 15 College Majors by Earnings for Recent and Experienced College Graduates

1– Engineering

Recent: $55,000; Experienced: $81,000

2– Computers & Mathematics

Recent: $46,000; Experienced: $76,000

3– Health

Recent: $43,000; Experienced: $63,000

4– Business

Recent: $39,000; Experienced: $63,000

5– Social Science

Recent: $37,000; Experienced: $60,000

6– Architecture

Recent: $36,000; Experienced: $64,000

7– Law & Public Policy

Recent: $34,000; Experienced: $55,000

8– Communications, Journalism

Recent: $33,000; Experienced: $54,000

9– Education

Recent: $33,000; Experienced: $43,000

10– Science-Life/Physical

Recent: $32,000; Experienced: $60,000

11– Agriculture & Natural Resources

Recent: $32,000; Experienced: $50,000

12– Recreation

Recent: $30,000; Experienced: $50,000

13– Arts

Recent: $30,000; Experienced: $46,000

14– Psychology & Social Work

Recent: $30,000; Experienced: $45,000

15– Industrial Arts

Recent: N/A; Experienced: $63,000

The worst degrees to have for unemployment? Architecture and the arts.

Parody of South Park Video is Fair Use

Mimicking a South Park episode with a "viral video" is a fair use parody of the show's episode, the US Court of Appeals for the 7th Circuit rule on June 7, 2012.

Comedy Partners made a parody of a South Park episode that mimicked a “viral video” using the same angles, framing, dance moves, and visual elements—but replacing the artist with Butters, a naive nine-year old. In Brownmark Films LLC v. Comedy Partners, 7th Cir., No. 11-2620, the Court held that Comedy Partner's parody of the South Park parody was fair use of a copyrighted work.

“When the two works in this case are viewed side-by-side, the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos[,]” Senior Judge Richard D. Cudahy wrote.

 

The South Park video was clearly a parody, and did not supplant the original. “As the South Park episode aptly points out, there is no ‘Internet money' for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had[,]” the court said.

Ironically, the effect of the South Park video, if any, would like increase ad revenue on the original, the court concluded.

Bloggers May be Journalists, After All

(c) Crestock

Perhaps bloggers are journalists after all.  Federal Judge Marcos Hernandez in Oregon ruled last November that a self-proclaimed “investigative blogger” was not a journalist for purposes of Oregon’s shield law. The tone of the opinion drove blogosphere apoplectic. Since the first ruling, Judge Hernandez issued another opinion in the same case, responding to the criticism by explaining “I did not state that a person who ‘blogs’ could never be considered ‘media.’”

Crystal Cox calls herself an “investigative blogger” and runs sites that she claims “expose corruption.” Obsidian Finance Group filed a $10 million defamation claim against Cox in Portland, alleging that she made several defamatory postings against Obsidian and its co-founder, Kevin Padrick. Cox defended herself in federal court, and lost.

Cox claimed her information for the Obsidian postings came from a confidential source, and, therefore, Oregon’s Shield Law protected her from disclosing her source at trial. In an opinion filed on November 30, 2011, Judge Hernandez disagreed, ruling that Oregon’s Shield Law was limited to traditional media like newspapers, broadcast stations, magazines, and news services — but not to an “investigative blogger” who was not affiliated with traditional media.

After retaining counsel, Cox moved for a new trial. Judge Hernandez denied the request in late March 2012. He held fast to his original decision that Cox did not qualify as “media” for shield law protection, but he also took pains to explain that his first ruling did not suggest that bloggers may not qualify as journalists.

“In my discussion, I did not state that a person who ‘blogs’ could never be considered ‘media.’” Judge Hernadez wrote in his opinion. “I also did not state that to be considered ‘media,’ one had to possess all or most of the characteristics I recited. Rather, I confined my conclusion to the record defendant created in this case and noted that defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the ‘media.’”

In justifying his decision against Ms. Cox, Judge Hernandez pointed out evidence regarding Cox’s offer of “public relations” services, including removal of her blog posts, to the defendants after they complained about the posts. “The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee,” Hernandez wrote. “This feature, along with the absence of other media features, led me to conclude that defendant was not media.”

Judge Hernandez’s point was that bloggers can be journalists — just not the one in his particular case.

Federal Policy Group Says Bloggers Entitled to Open Access to Public Records and Meetings

(c) Crestock

 “All animals are equal, but some animals are more equal than others,” George Orwell wrote in his satire Animal Farm. This sarcastic quote is turning out to be true for bloggers, many of whom are finding limited access to local public records and meetings while more rights are granted to representatives of traditional media organizations.

The practice of denying bloggers the full status of other journalists has caught the ire of organizations such as the Electronic Frontier Foundation (EFF), which has fought to level the playing field for public access on behalf of hyperlocal news media and bloggers.

Local officials have granted traditional media access to public records and meetings while denying the same privileges to hyperlocals. For example:

• In 2008, the Washington Metropolitan Area Transit Authority (WMATA) denied the local news bloggers the Greater Greater Washington and DCist a waiver of fees for access to certain WMATA records. WMATA’s chief of staff concluded “because the appeal panel determined that the websites do not serve to provide information to the general public, we find that you are not a representative of the news media.”
• The Lake Oswego City Council denied the local political blog Loaded Orygun access at a Lake Oswego City Council executive session because it was not a member of the news media. The Council drafted a policy that required that news media representatives must work for an organization that is registered with the state Corporations Division and the representatives must adhere to the SPJ ethics code.

“Bloggers can be journalists (and journalists ca be bloggers),” according to the EFF. The EFF was organized to champion the public interest in every critical battle affecting digital rights and has battled for legal and institutional recognition for any individual or entity engaged in journalistic endeavors. “We believe that people who do journalism are journalists,” said Rebecca Jeschke, EFF’s Media Relations Director & Digital Rights Analyst. Jeschke recently provided Street Fight with the following insight regarding access to public records and meetings by hyperlocal journalists, bloggers and publishers.

The EFF Web site provides an introduction to access rights to public records and meetings in its Legal Guide for Bloggers. The main points include:

• Many states generally require meetings of public bodies to be open and public. Under limited circumstances, the agency can conduct a closed meeting (such as for addressing certain personnel issues).
• Through the Freedom of Information Act (FOIA), anyone can seek access to public records held by federal agencies. Members of the news media are entitled to a fee waiver. Bloggers’ FAQ on the Freedom of Information Act.
• States also have public records laws. For example, the California Public Records Act provides access to public records held by state and local agencies.

Other resources available to hyperlocal news media include The Reporters’ Committee for Freedom of the Press and Citizen Media Law Project at Harvard University. The Reporters’ Committee offers a Freedom of Information Act form letter for use by journalists.

As Elections Near, Keep An Eye on Political Ads

Facebook recently asked the Federal Election Commission if it can forgo putting required disclaimers on its smaller political advertisements — such as disclosing who paid for the ad. The FEC said “no.”  This example sends a reminder that digital media publishers must ensure they comply with federal regulations that govern political advertisements.

Most political advertisements must include some form of a disclaimer explaining who paid for the ad and whether it was approved by a candidate. Federal regulations require these disclosures on the following types of Internet communications:

- All websites operated by political committees.

- All ads purchased by a political committee for placement on another person’s websites.

- All ads purchased for a fee by a candidate or another person that advocates a candidate or political position.

The disclaimers must be clear and conspicuous. The disclaimers must disclose:

- Who paid for the ad.

- If the ad is paid for by a committee or other group.

- A disclosure as to whether the candidate has or has not approved the ad.

The rules apply equally to advertisements purchased on political blogs or on hyperlocal publications that reach out to a general audience. The regulations provide some exceptions for small items such as bumper stickers, pins, buttons and text messages. On the other hand, the FEC has been less willing to grant exceptions for small internet advertisements.

Less than a year ago, the FEC ruled that Facebook must include the advertising disclaimers in its smaller advertisements, similar to the “Sponsored Stories” ads that appear on the right column of Facebook’s user pages, despite Facebook’s protests that the small ads could not accomodate the disclaimers.  Facebook claimed that the “small item” exception under the regulations should apply  to Facebook’s standard ads, which is limited to 135 characters, and its Sponsored Stories ads, limited to 100 text characters. The SEC deniedthe request. “The limitation on the size or the number of characters that Facebook allows to be included in a Facebook ad is not mandated by the physical limitations of the display medium or technology,” the commission ruled in its opinion on June 15, 2011. “Facebook’s business decision in favor of small ads does not justify elimination of the statutory disclaimer requirement given that it remains physically and technologically possible for Facebook to increase both the size of its ads and the number of characters that may be included in its ads.”

On the other hand, the SEC provided an exemption to Google text ads, which are limited to 70 characters. The FEC is considering modifying the rules to determine whether it should consider allowing a link to a web page operated  by the purchaser of the advertisement that would include the disclaimer. The FEC took public comments late in 2011 but has not proposed updated rules.

Hyperlocal publishers should ensure that the political ads sold on their sites contain all the disclaimers required under FEC regulations. Hyperlocals also should ensure that any creative elements they provide for a political advertisement include a proper disclosure.