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SEE YOU IN COURT! - July/August 2012

CABE Journal

July/August 2012

Authors: Thomas B. Mooney

Bob Bombast was concerned. If the members of the public don’t know about the good work of the Nutmeg Public Schools, he pondered, they won’t be as willing to spend the money Nutmeg needs. So Bob came to the next meeting of the Nutmeg Board of Education ready with a public relations plan to woo the public.

“Mr. Chairman,” Bob intoned at his first opportunity. “I have a matter of utmost urgency, and I move that we suspend the rules to address it. While it is not on our agenda this evening, the Board must to engage the public in the wonderful work of our students and staff. Our current efforts are woefully inadequate.”

“Wait a minute,” interjected Board member Penny Pincher. “I thought we were limited to agenda items. If it is open season, I have some additional cuts to propose.”

Mr. Chairman banged his gavel. “It is not open season, Penny, but sometimes we have to be a little flexible. Bob and I have talked this over, and it is important to address this issue now. Bob, please proceed.”

“Thank you, Mr. Chairperson, for your sage leadership,” Bob unctuously responded. “I have a couple ideas to improve public relations in Nutmeg.

First, we must do something about the God-awful website. The term ‘webmaster’ is certainly a misnomer when we are talking about our website. That guy couldn’t sell water to a camel. I propose that we fire him posthaste and hire someone with some pizzazz.”

“Wait a minute,” interrupted Mr. Chairperson. “We cannot talk about an employee in open session. Refrain from such comments, but carry on.”

“OK, OK,” Bob responded. “Whether we fire the guy or not, we have to make our school websites more interesting. The Internet is a treasure trove of exciting things. Therefore, I propose a contest among our schools to post the most engaging pictures of student learning. The Board will judge the posts in executive session, and the school that posts the most interesting pictures it finds on the Web will win.”

“What’s the prize?” asked Penny Pincher. “We don’t have any money.”

“Public recognition of a job well done should be enough,” Bob responded.

Sure enough, there was great enthusiasm for the contest, and some principals even enlisted students and their parents in the hunt for the most engaging picture. After a month with each school posting their submissions on its website, the Board convened in executive session and selected a winning photo and a runner-up. The Board then declared the winners in open session, and they were posted on the district’s website.

A month later, Mr. Superintendent was surprised to get a lawyer letter claiming that the posting of the winning picture was a copyright violation. The whole matter can be resolved promptly, it went on, if the district would pay $2,500 for the violation and remove the picture immediately. For another $1,000, however, the district could “license” the picture and keep it on the website. This is ridiculous, Mr. Superintendent thought to himself as he threw the letter away. There was no copyright notice, and so the picture is in the public domain.

Does Nutmeg have a problem? 

                                                                  *        *        *

In a word, yes. In this technological age, school districts must be very careful about the intellectual property rights of others. Here, Nutmeg may well be liable.

The Copyright Act allows a copyright owner to register her copyright in a work, but one does not need to have a copyright registration to have protection; a registration documents the intellectual property, but the protection exists regardless of registration and even without the © symbol. Mr. Superintendent was just wrong to presume that a picture posted on the Internet somehow loses its copyright protection. Accordingly, while it may feel like highway robbery, the copyright holder can indeed claim copyright infringement and demand compensation. Therefore, it is very important to make sure that the school district has a license or other permission to use any material on its website or otherwise. Indeed, one school district had to repaint its gymnasium floor when the logo in the center of the floor it had copied off the Internet turned out to be a specially-designed letter that was copyrighted.

Districts must be vigilant in two related respects. First, the right to use intellectual property is often limited to a particular use. For example, if the district has purchased sheet music, it has the right to use that music, but not to copy it. Similarly, if a district purchases ten licenses for a software program, making an additional copy is an infringement for which the district is liable. Even movies can give rise to a claim. A movie purchased for home use cannot be shown in school for entertainment, because the license one purchases is for personal use, not for the entertainment of others.

Second, school districts can be also liable for what is called “vicarious infringement.” That can happen when a school district permits another party, e.g., the PTA, to post on its website and that party infringes a copyright. If copyrighted material is posted without permission, there may be liability, even when a third party commits the infringement unwittingly. Education and vigilance are thus essential.

As usual, the activities of the Nutmeg Board of Education also raise Freedom of Information Act issues. Under the FOIA, boards of education can only deal with matters on their agenda (including items that they may add at a regular meeting by a two-thirds vote). Bob’s sense of urgency did not justify dealing with the issue of public relations even though it was not on the agenda. Significantly, action is not required. Any substantive discussion by the Board of a matter not on the agenda is a violation.

By contrast, when Bob talked about firing the webmaster in open session, he did not violate the FOIA. The Act permits discussion of employment and dismissal of an employee in executive session, provided that the employee has advance notice and the opportunity to require that the discussion be held on open session. However, it does not prohibit open session discussion of an employee’s performance. Keeping such matters confidential is a matter of good practice, not legal obligation.

Finally, the ill-conceived contest also involved an FOIA violation. Boards of education can convene in executive session only for purposes specified in the law, i.e. discussion of personnel, claims and litigation, purchase of real estate, deployment of security personnel and devices, and discussion of information contained in confidential documents (e.g., student records). Selecting a winner in such a contest is not such a topic, and though perhaps it would have been awkward, the Board should have held that discussion in open session.

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