The Collegian AIG interviewed Collegian General Manager Wayne Lowman about the recent controversy that erupted publicly over the waiver and indemnification document each staff member is asked to sign.
AIG: Over the past month or so, controversy has arisen over the contract that The Collegian asks staff members to sign, with some staff members objecting publicly. Can you tell us the main purpose of the contract?
Wayne Lowman: The “contract” is more accurately a waiver and indemnification document.
The waiver portion articulates The Collegian establishing copyright for content that appears on its print and digital platforms. It establishes and clarifies a condition that has existed at The Collegian for many, many years and is, in fact, part of the Bylaws. The waiver acts both to inform staff of the copyright provision and to establish that standing with staffers.
The indemnity portion is very similar to language used by many other Penn State student organizations and the College of Commmunications. It provides legal protections to the Collegian.
AIG: Although signing the contract has been required for some time, did the controversy arise because the contract was rewritten? If so, can you tell us why it was changed?
Lowman: The controversy arose when a photographer insisted he owned his images from day one. The was not and is not The Collegian’s policy on copyright. After exploring the issue, it seems there is an on-going conversation in the industry. I and the president of the Board felt The Collegian should be at the forefront of this issue as it relates to student impact. The language of the waiver was changed to, in effect, liberalize the policy and start moving toward an even more liberal policy that meets the needs of student journalists and The Collegian as a media organization.
AIG: Did The Collegian leadership discuss the changes with the staff and acquiesce to some of their requests for changes?
Lowman: The issue and recommendations were discussed with student leaders. Some language from the student recommendation was included in the new waiver. Many of the changes were to meet student requests, including guaranteeing protection from defamation claims and ownership of content reverting back to students. All changes and language were shared and vetted through student leadership.
AIG: Twenty-seven staff members signed a protest document that was published online. Have any of them decided now to sign the document? What happened to the others? In all, how many staff members have signed the contract?
Lowman: Approximately 23 of the 27 staff members who signed a protest document have signed the new waiver and joined the Collegian for the spring. Two or three have planned internships for the spring and one or two graduated in December. I am not aware of anyone from the original protest letter who has opted not to participate with the Collegian.
AIG: Many of the protesters seem to object to The Collegian retaining ownership of content, including photographs, for 15 months. During that time, can students use their stories and photographs in portfolios? After that time, does ownership revert to the students who created the content?
Lowman: Students have always had the freedom to use photographs in portfolios and personal galleries. Students wanted to be sure that they would be protected from defamation suits. The statute of limitations for defamation in Pennsylvania is 12 months. The Collegian attorney recommended holding copyright for 15 months to protect against a risk that a judge may accept a case that runs beyond 12 months. While any defamation claim would target The Collegian as the publisher of such content, a suit may also include the photographer or reporter. If The Collegian retains copyright of that material, the Collegian libel insurance would cover all parties. If, however, a photographer holds copyright and is found to have violated protocols such as invasion of privacy or failure to stay on public right of way, the reporter could be held liable.
After 15 months, copyright reverts to students. The new waiver allows the Collegian to utilize content after 15 months for sale to individuals only through our third-party sales platform or for future editorial (file photos) or promotional use.
Meanwhile, we are continuing to explore other waivers and licenses so we can develop a best practice. I am sure the Collegian waiver will evolve.
The current Editor in Chief, Maddie Akins, supports and endorses the waiver.
The text of the waiver and indemnification document follows, as well as an explanation of its provisions.
ASSIGNMENT OF RIGHTS AGREEMENT WITH COLLEGIAN, INC.
- ASSIGNMENT OF PHOTOGRAPHIC, MOTION PICTURE, VIDEO, SOUND RECORDING AND WRITTEN TEXT RIGHTS: I, ______________________________________________, hereby authorize Collegian, Inc. (hereafter also “Collegian”) and its officers, agents, and employees, to photograph, record, film, or videotape me or to use media that I submit. I understand that any photograph, sound recording, motion picture, or video taken of me or by me under this assignment is for the purpose of collecting and/or representing factual information in the interest of serving Collegian Inc.’s mission of reporting and publishing news material in its newspaper, on digital platforms and any other channels known or unknown is subject to copyright law.
- ASSIGNMENT OF CONTENT: I hereby assign to Collegian, Inc. all rights, title, and interest, including copyright, to any and all content, including photographs, videos, sound recordings, motion pictures and written work except for the following conditions:
- Collegian will release copyright on all content 15 months after publication on any Collegian platform;
- Collegian retains in perpetuity rights of retail sales to individuals who may contact the Collegian for purchase of individual pieces of content that have been published on Collegian platforms;
- Collegian retains right to use any content that has appeared on its platforms in promotions or publicity of the Collegian;
- Collegian retains right to use any content that has appeared on its platforms in creating ads or promotions for its business clients.
- No compensation and royalties are required from or will be paid by the Collegian for the use of the content as described above. Content creators may utilize Collegian content at any time for portfolios, personal displays or those uses not covered under Assignment of Content.
- PHOTO NOTICE AND MARKINGS: Collegian will include a photo credit, byline or copyright notice in the name of the creator.
- Either party may terminate this Agreement immediately upon delivery of written notice to the other party specifying clearly the grounds for termination if the other party commits a material breach of its obligations under this Agreement and fails to cure the breach within sixty (60) days after written notice of the breach is received by the breaching party. Termination will not release either party from subsequent legal action if a legal action as outlined below in INDEMNIFICATION occurs before the termination request.
- The Collegian acknowledges content creators are covered under the Collegian’s liability policy for content that falls under copyright protection. This includes all liability claims, demands, causes of action, judgments, damages and expenses (including reasonable attorneys’ and experts’ fee and costs) arising out of or as a result from use of creators’ content. Indemnification does not include claims, demands, causes of action, judgments or expenses arising out of violations of law, willful misconduct, gross negligence or bad faith behavior by the creator or for that content no longer under copyright protection. This includes, but is not limited to plagiarism, infringement of copyright and invasion of privacy.
- NO WAIVER. This Agreement may not be altered, modified or amended in any way except in writing signed by both parties. The failure of a party to enforce any provision of the Agreement will not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right.
- ENTIRE AGREEMENT. This Agreement represents and constitutes the entire agreement between the parties and supersedes any and all prior negotiations, agreements and understandings, oral or written, with respect to any and all matters between the parties.
- GOVERNING LAW. Parties agree that this Agreement will be governed by and constructed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without reference to rules governing choice of laws, with original jurisdiction and venue vested in the Court of Common Pleas of Centre County, Pennsylvania.
- All notices, demands or other communications to be given under this Agreement by either Party shall be by U.S. P. S. certified mail, postage prepaid with return receipt requested only. Notices may not be personally delivered or transmitted by email.
PARTICIPATION IN THE ACTIVITY
- WAIVER: In consideration of being permitted to participate in any way as a Collegian participant, hereinafter called “The Activity,” I acknowledge that participation carries with it certain inherent risks that cannot be eliminated regardless of the care taken to avoid bodily injury or harm. I, therefore, for myself, my heirs, personal representatives or assigns, do hereby release, waive, discharge, and covenant not to sue or in any way file legal action against Collegian, Inc., its officers, employees, board members, or agents from liability from any and all claims, including negligence, that result in personal injury, accidents or illnesses (including death), and property loss arising from, but not limited to, participation in the Activity.
Note: The Collegian, at its discretion, may choose to provide legal assistance or payment of medical costs not covered by an individual’s personal insurance if costs arise while representing the Collegian in activities such as covering news events and if the individual was operating within the accepted guidelines of Collegian protocol and professional journalistic norms. This does not include claims, demands, causes of action, judgments or expenses arising out of unassigned work, willful misconduct, gross negligence or bad faith behavior or violations of law on the part of the undersigned.
- SEVERABILITY: The undersigned further expressly agrees that the foregoing waiver and assumption of risks agreement is intended to be as broad and inclusive as is permitted by the laws of the Commonwealth of Pennsylvania and that if any portion thereof is held invalid, I understand and hereby agree that the balance shall, notwithstanding, continue in full legal force and effect.
- STUDENT IN GOOD STANDING: I acknowledge that while Collegian, Inc. is not affiliated with The Pennsylvania State University in any way, my position on the Collegian as a participant is dependent upon status as a student in good standing at Penn State University. I understand that a probationary status, either academic or behaviorally, is grounds for immediate dismissal from my position and it is my responsibility to inform immediately the Editor In Chief or Business Manager of a probationary status. Furthermore, I agree to give Collegian, Inc. permission to affirm my position as a student in good standing with the appropriate Penn State University department.
- ACKNOWLEDGEMENT OF UNDERSTANDING: I have read and understood the provisions of this agreement, and understand that I am free to obtain advice from legal counsel of my choice, at my expense, to interpret these provisions. By signing below, I acknowledge that I have freely and voluntarily entered into this agreement.
PRINT NAME: ________________________________________________________________________________
CURRENT STATE COLLEGE ADDRESS:________________________________________________________________________ PERMANENT ADDRESS: ___________________________________________________________________________________
I hereby certify that I am over 18 years of age: ________ Initials
I have read and received a copy of this release for my own records: ________ Initials
For subjects under 18 years of age: I hereby certify that I am the parent or guardian of the person named above, and I do hereby give my consent without reservation to the foregoing on behalf of him or her.
SIGNATURE OF PARENT OR GUARDIAN: ____________________________________________________________ DATE:___________________
PRINT NAME: __________________________________________________________________________________ I have read and received a copy of this release for my own records: ______________ (Minor’s Initials)
FOR COLLEGIAN, INC.
PRINT NAME: ___________________________________________________________________________________
Collegian contract FAQs
How does the Collegian’s copyright work?
The Collegian owns the copyright to content for 15 months. After 15 months, the content creator owns the copyright of the work they created.
This 15-month rule protects content creators from lawsuits that may arise from their work. In Pennsylvania, the statute of limitations for defamation is 12 months. This means that, up until one year, someone can sue the Collegian for published content. The Collegian would defend a content creator if the lawsuit falls during the Collegian’s copyright ownership (15 months). Outside of 15 months, the Collegian would have the right to call a copyright owner into the case as a co-defendant. Just to reiterate, the statute of limitations for defamation is 12 months.
The Collegian’s lawyer recommended adding the additional three months as a safety zone to ensure content creators are protected by the Collegian.
Does the Collegian often face lawsuits for defamation?
No. The last instance occurred in 2018 for fair reporting about abuse within Penn State’s gymnastics team. The suit was dropped as those suing had no case.
Through its editing process, the Collegian is careful to avoid instances of defamation.
Read more about defamation and libel here (this document is provided to and taught to all current candidates).
When can I use my work for my portfolio?
Staff members can always use their work for their portfolios and personal displays no matter who owns the copyright at the time. This includes posting content created for the Collegian on personal social media accounts.
This is explicitly stated in the contract, which reads, “Content creators may utilize Collegian content at any time for portfolios, personal displays or those uses not covered under Assignment of Content.”
Why does the Collegian retain the right to use content for promotions, publicity or ads?
The Collegian relies on its current content and archives to tell the stories of the Penn State and State College communities — as most news outlets do. Content is used for articles, graphics or videos, for example.
The 24-hour news cycle is hectic and fast-paced. The Collegian needs the content that its current and former staff members made to tell stories completely and (often) quickly. By “the Collegian,” this means our editors, graphic designers, videographers, senior photographers, D-Team members, etc. who are working hard to post content on our website, lay out the paper and post content on our social media.
As for ads and promotions, news division content is primarily used for recruitment videos and graphics to encourage students to join the Collegian. Content such as ads made for business clients primarily falls under the business division’s role.
Does the Collegian retain sole retail sale rights after 15 months?
No. After 15 months, content creators are able to sell their content they originally made for the Collegian. However, if an individual reaches out to the Collegian seeking to buy content for individual use after the 15 months, the Collegian is able to sell the content.
Content created before the 15-month deadline can always be sold by the Collegian. In reality, not many people seek to buy Collegian content. The biggest names that contact the Collegian about using content before the 15-month mark are other news outlets. And, if a news outlet asks to use Collegian content, the Collegian will often give this outlet permission free of charge (with credit to the Collegian and content creator).
Again, not many individuals purchase content from the Collegian at any time. However, any money that is made goes back to help the Collegian and its student journalists.
The current state of journalism and the coronavirus has impacted the Collegian financially, just as it has many other news outlets. The Collegian is an independent, nonprofit, student-run news outlet. Money that the Collegian makes — on any front — goes to Collegian-related expenses such as student grants, travel fees, rent and salaries for the Collegian’s professional staff who help the Collegian operate.
I heard a Collegian photographer was arrested in 2008 and the Collegian didn’t help him. Is this true?
In 2008, a Collegian photographer faced misdemeanor charges after covering a riot in downtown State College. During the riot, police yelled at the photographer several times and took his driver’s license. He then left the area. He later found out he faced charges through a press release issued by the State College Police.
Immediately, the Collegian offered written support for the photographer (read in the article linked above). The Collegian also issued an editorial supporting the photographer.
A State College lawyer took on the case pro bono (free of charge) on behalf of the ACLU after the Collegian’s general manager at the time contacted the ACLU about the case (8th graf in this article). It is not unusual for lawyers to take on civil rights or First Amendment cases pro bono.
A Google and BLOX search cannot find any public record of the Collegian citing its (now former) indemnification clause against the photographer.
The charges against the photographer were ultimately dropped.
There is not a precedent of abandoning student journalists at the Collegian; there is a precedent of supporting them.
You can click the above links to learn more about this incident, or read more on the Collegian’s website. You can also read a non-Collegian source about the incident here.
What is the Collegian’s current policy regarding student arrest?
Under the updated contract, the Collegian says at its discretion it may provide legal assistance or payment of medical costs if a student was acting under journalistic ethics and Collegian guidelines at the time of incident. The Collegian will evaluate the situation and if it is financially able to help the student. The Collegian cares about its student journalists, and will do what it can to support them.
When law enforcement, say, violates the First Amendment, the Collegian may want to first contact the ACLU to see if a lawyer will take the case pro bono. In this instance, the student would be defended free of charge. This would also be free of charge for the Collegian — an independent, nonprofit, student-run news outlet.
What risks are associated with working at the Collegian?
There are inherent risks in participating in anything. Specific risks associated with the type of work the Collegian does could involve, for example, covering a protest or traveling for Collegian-related reasons.
However, because students at the Collegian are unpaid volunteers, no one is required to cover certain events or travel for certain reasons. It is up to a student’s discretion to cover the events they want to report on. Though students are expected to meet a quota, no one is forced to write a certain story, cover an event, shoot a video, etc. Reporters offer or are asked to cover events, photographers offer or are asked t o shoot events, etc.
A recent example of this: At the beginning of the semester, Maddie asked all editors to ask their staffers if they wanted to work in the office or interact with sources in person amid the pandemic. It was up to the student’s discretion to choose how they wanted to work during the fall semester.
As John Dillon found, participation waivers are required to join any number of clubs and organizations across the university. These waivers ask the participants to recognize the risks involved and to waive their right to sue the organization they are joining. The possibility of protections for the participant, as in the Collegian’s updated contract, appears to be a rare exception.
Another point to note: Even Penn State’s in-depth reporting class requires students who travel for the class to sign a contract saying that the student, their heirs, etc. release and discharge Penn State, its agents, etc. from “any and all claims of liability, demands, actions, causes of action, losses or demands on account of any injury, disability or death.”
Why are these contracts just being introduced?
When someone joined the Collegian, they were supposed to sign the original contracts sent in November before he or she created content for the Collegian. Unfortunately, it was a failure on the part of several years of Collegian leadership (including Maddie) to distribute these contracts to new candidates.
The contracts were reintroduced after the question of copyright was brought up in November.
How was the updated contract written?
The updated contract was written by Wayne Lowman, our general manager and news adviser. John Dillon, the president of the Collegian board of directors, worked alongside Wayne during the process. The contract was then sent to the Collegian’s lawyer to review. Maddie reviewed the updated contract both before and after the lawyer reviewed it.
Before writing the new contract, Wayne and John put thought, care and research into it. John reached out to College of Comm professors about it, and talked to individuals from news outlets in the commonwealth about their contracts. He also looked at participation waivers that some clubs and organizations at Penn State have.
John also reviewed the Student Press Law Center’s model copyright agreement. This updated contract was heavily influenced by SPLC’s model.
The SPLC is based in Washington and says it “provides information, training and legal assistance at no charge to student journalists and the educators who work with them.” It says its model agreement “is an attempt to fairly balance the intellectual property rights of the student creators of a work (which, for example, includes news stories, photographs, graphic designs, etc.) against the business and practical requirements of student media organizations that publish such work.”
What happens if I don’t sign the contract?
Everyone who wants to be on staff in the future needs to sign the contract. Every semester, students are reevaluated as they apply for staff positions. This contract is necessary for your reevaluation to be completed for the spring 2021 semester.
Again, everyone was supposed to sign a contract to join the Collegian. You must sign it to be reevaluated for the spring.
Whose decision is it to sign the updated contract?
Yours. It should not be a decision made for you by Collegian leadership, fellow staff members, Collegian editors, former Collegian staff members or anyone else.
Of course, when signing any legal document, it may be beneficial to read over the document with, for example, a parent, trusted adult or legal expert who can help you understand the document. However, it is ultimately an individual decision to sign or not sign a contract.