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When are student newspaper budget cuts unconstitutional?

   It's that time of year. Many student papers are getting bad news about budget cuts, reduced portions of student fees or even total defunding
   It's illegal for public officials (including student governments) to cut a newspaper's budget because of the newspaper's content, but that doesn't stop schools from trying.
   Take the Blue & Gray Press at University of Mary Washington, which in 2018 had its budget cut from about $13,000 to just $100 for "office supplies." The staff contacted SPLC's legal hotline and explained the situation. The Student Government Association president had told them that members of the student government who voted to cut the Press' budget were upset about articles they wrote. 
   SPLC Senior Legal Counsel Mike Hiestand coached the staff through next steps, then wrote a letter outlining the legal boundaries and past court rulings, which the students used to help negotiate with students and administrators. SPLC reporters also covered the story, and local media picked it up. As bad press grew, the school backed down and restored funding. 
   In our latest podcast, we spoke with student journalists like those at the Blue & Gray Press who’ve had budgets cut, student leaders who’ve done the cutting, and the media lawyers who step in when a cut crosses the line. 
Listen now
If your student publication is facing a budget cut you fear is content-motivated, please contact SPLC's legal hotline. We're here to help you!
 
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June 14 deadline for SPLC student press freedom awards

   We are excited to receive nominations for our high school journalism and college journalism awards that recognize exceptional efforts in fighting for student press freedom. 
   Don't be shy about nominating your publication or studentsDetails here. The awards celebrate the determination and success, despite difficulty or resistance, of student journalists/student news organizations exercising their First Amendment press rights.
   We appreciate our partners for the high school award — Center for Scholastic Journalism at Kent State University and the National Scholastic Press Association. And, for the college award — the Louisiana State University Manship School of Communications and the Associated Collegiate Press.
Nominate Now

Q: Our college TV station recently covered auditions for our college's dance team. The student editor was unaware that the song playing in the background of the video was copyrighted when she created the video. The piece is edited with several cuts and you don’t ever hear a full song played. Can we air the piece with the background music even though we have not obtained explicit permission from the record company?

A:
There is a concept in copyright law called “incidental use” that likely comes into play here. If you are able to demonstrate that your use of copyrighted material — in this case, the music playing in the background — was merely incidental, there is no copyright violation.
   The difficulty comes in determining where the line between infringement and incidental use is drawn. Unfortunately, the factors that go into that are pretty subjective.
   One of the biggest factors would be how much of the song can be heard? You say it's not continuous, that helps. If you are cutting away frequently so that you only pick up 10 seconds of the song at a time, for example, you are in better shape than if your cameras are simply running continuously and they capture the performance and song in its entirety.
   Another factor is how clear the music is. If it's muffled and truly in the background, you're in a stronger position to argue incidental use than if your camera was parked next to the speaker — or worse, if your equipment was plugged into the audio system and the song is crystal clear.
   You can do a bit more digging into incidental use to see how you fare. We found this lawyer's video pretty helpful (if a tad long-winded).
   The other relevant defense is fair use. You don’t mention why the video was created. If you are using editorially appropriate sound/video bytes of the auditions to illustrate a bona fide news story or review of the event, you would have a strong fair use claim. On the other hand, if you essentially captured the entire performance and published it without a news peg, you'd have a difficult time arguing fair use.

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