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In AFP v Morel Judge Denies Attorney Fees to Morel Trial Lawyers, Grants Lien by Former Lawyer

March 24th, 2015 by Wills Citty and tagged , , , , , ,

******************* UPDATE 03-24-15 ***********

In a surprise decision the trial court judge in the case denied Morel’s application for attorneys’ fees for his trial lawyers but granted the motion by his prior lawyer for her charging lien. “Briefly stated, Morel fought a fair fight and won. The fact that this was a close case on the merits, involving novel legal issues, persuades the Court that the purposes of the Copyright Act are not furthered by awarding fees and costs pursuant to § 505.”  Read decision AFP v Morel – attorneys fees 03-23-15

 

*************** UPDATE 10-05-14 ***************

On October 3, 2014, Morel’s lawyers filed a Memorandum of Law in Support of Daniel Morel’s Motion for an Award of Attorneys Fees and Costs against. Attorney Joseph T. Baio argued that as the prevailing party where the Court had already affirmed the damages that the jury had awarded, Mr. Morel is entitled to more than $2.3 million in fees and another approximately $200 in expenses. Additionally Mr. Morel’s previous attorney, Barbara Hoffman is seeking more than $700K in fees for her part of the case.  orm of a new trial on all issues.”

*************** UPDATE 01-29-14 ***************

On January 24, 2014 Morel’s lawyers filed a Memorandum of Law in Opposition to Defendants’ Motion for a Judgment as a Matter of Law. Attorney Joseph T. Baio argued that the court should stop AFP/Getty’s “continuing four-year war of attrition against Mr. Morel” and  deny their request “to eradicate the jury’s findings across the board, slash the amounts they must pay Mr. Morel, or order a ‘do-over’ in the form of a new trial on all issues.”

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Getty Images and Agency France-Presse have filed documents requesting a landmark copyright infringement verdict rendered against the media giants be overturned.

In the motion challenging the verdict, AFP and Getty’s lawyers claim, among other things, that no reasonable jury could have found that their clients willfully committed infringement.  The motion also disputes the jury’s allocation of actual damages (damages directly traceable to the copyright infringement) claiming the $275,000 was excessive and not supported by sufficient evidence.  AFP and Getty are seeking a reduction in damages or a new trial so the issue can be reheard.

Last November a jury essentially threw the book at Getty and AFP, awarding photographer Daniel Morel $1.22 million in damages on a claim arising from the media groups’ unauthorized use of Morel’s photos of the aftermath of the 2010 Haitian earthquake.

The case arose after Getty and AFP used images Morel posted to Twitter.  The groups falsely credited another user who had reposted the photos and claimed to own them. The damages awarded are the maximum allowed, increasing the impact of a case that had already captured the public’s attention as a test of the law’s treatment of intellectual property shared on social media.

Getty and AFP claimed that Twitter’s terms of service allowed supported their use of Morel’s photographs.  AFP went as far as to file suit against Morel, arguing that he was interfering with their business practices.

In 2011 a federal district court judge dismissed AFP’s claim and ruled that it, as well as Getty, had infringed on Morel’s copyright by publishing the photos without his permission, and the decision was heralded as a major victory for photographers who share content on the Internet. It was then up to a jury to decide the appropriate damages, that determination in part being premised on whether or not the group’s copyright infringement had been “willful”.

 

Posted in AFP, AFP v Morel, Agence France-Presse, Daniel Morel, Digital Millenium Copyright Act, Getty, Getty Images, Lawsuit, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism, Twitpic, Twitter | 4 Comments »

FAA Announces Proposed Drone Rules: will allow use of UAS under 55 lbs., under 500 ft; certification required

February 15th, 2015 by Alicia Calzada

Today the FAA proposed allowing drone flights within line of sight, during daylight hours only, and with a special operator’s certification. The FAA  announced its long-awaited proposed rules, for the regulation of small unmanned aerial systems (sUAS, or sUAVs), commonly referred to as drones. The NPPA is reviewing the rules, and the entire text of the proposed rules are not yet available, but based on the initial information released by the FAA, the rules appear to be an overall positive development for photojournalists and will address safety while enabling photographers to use the technology with fewer onerous restrictions than were expected.

“While we still need to review the proposed rule in its entirety, we are very encouraged that the FAA has chosen to follow the commonsense and less burdensome  approach to its rulemaking that NPPA has been advocating for over the past few years,” said Mickey H. Osterreicher, NPPA general counsel who was on today’s call with the FAA.

Under the proposed rules, sUAS flights will only be permitted during daylight hours, cannot go more than 500 feet above ground level, cannot be operated over any people who are not directly involved in the operation, must stay clear of other aircraft, and the UAS must remain within the line of unaided sight (no binoculars) of the operator or visual observer. However, there seems to be accommodation for the use of a visual observer in the rules. Remote cameras would not satisfy the visual-line-of-sight requirement but could be used as long as the UAS were still within the line of sight of the operator or observer.

NPPA president Mark Dolan commented, “the NPPA has been involved with this issue from the very beginning through our advocacy committee, which has consistently offered opinions and advice at every stage of the discussion. We are happy to see the FAA seems to have followed the spirit of that advice in taking a thoughtful and measured approach to the issue rather than take an extreme and restrictive stance, which can so often be the official reaction when faced with any type of new technology.” Dolan added that NPPA, “will continue to observe, and weigh in on, this issue as it moves through the public comment period of the FAA’s  rule-making process,” he added.

Under the proposal, the sUAS must weigh under 55 lbs. Pilots of small UAS, called operators, must be over 17; would be required to pass an initial aeronautical knowledge test at an FAA-approved center; be vetted by the Transportation Security Administration (TSA); obtain a sUAS operator certificate which never expires (unless revoked), and pass a recurrent test every 24 months. An individual with a private pilot’s license will still need to obtain a sUAS operator certificate to pilot a sUAS. Once certified, the operator can pilot any type of UAS for commercial purposes, “so long as you are flying within the parameters of the rule, line-of-sight, etc.” said FAA Administrator Michael Huerta this morning. The FAA has long considered photojournalism to be a “commercial” enterprise for the purposes of its rules on sUAS. Hobbyist’s use of sUAS will not require a certificate.

Operators will be required to conduct a pre-flight inspection to ensure that the small UAS is safe for operation, and must report to the FAA any accidents which result in injury or property damage within 10 days.

The proposed rules also considers the idea that there might be a “microUAS” category for UAS under 4.4 pounds “that would allow operations in Class G airspace, over people not involved in the operation, provided the operator certifies he or she has the requisite aeronautical knowledge to perform the operation.”

The rules were presented in a hastily announced, mid-holiday weekend press conference, and are further outlined in a press release. The NPPA cautions its members that these are proposed rules and as such those wishing to operate sUAS must still petition for a section 333 exemption, although that petition (unlike previously granted petitions which included a pilot’s certificate) would now most likely be approved following the guidelines in the new NPRM. “It is also important to remember that while these proposed rules address safety issues, today the President also signed a memorandum (similar to an executive order) ensuring that the government’s drone uses don’t violate the First Amendment,” Osterreicher said. “That memo also tasks the Commerce Department’s National Telecommunications and Information Administration (NTIA) with developing privacy and transparency rules for drone use,” Osterreicher added. The privacy issue is one that has been currently addressed by a patchwork of state legislation throughout the country.

The FAA will be accepting comments from the public for at least 60 days. Therefore the rules won’t go into effect until after the rulemaking period is over, which could still take another 2 years. The proposed rules are expected to be posted at this link later today: http://www.faa.gov/regulations_policies/rulemaking/recently_published/

 

Posted in broadcasting, drone, Drones, FAA, First Amendment, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, photojournalism, small unmanned aerial systems, sUAS, UAS, Unmanned Aerial Vehicle (UAV) | No Comments »

NPPA, Joined by Other Media Groups Files Comments Objecting to Fairfax County, VA Photo Permit Fees

February 5th, 2015 by Alicia Calzada and tagged , , , , , , , , ,

Yesterday, the National Press Photographers Association (NPPA), joined by twelve other news and photographers’ organizations and First Amendment advocacy groups, filed comments with the Fairfax County Park Authority strongly objecting to their proposed permit and fee structure.

The proposed scheme would require all professional photographers to obtain a “professional photography permit”. Further, the permit would take 5 days to process, making it nearly impossible for news photographers to obtain one in time for most news situations, for which there is little to no warning.

The comments, authored by NPPA general counsel, Mickey Osterreicher, explains that “the proposed rules, create an unnecessary and burdensome distinction between amateur and professional photographers. Whether the images being made and recorded are for journalism, weddings or any other type of photography/filming (hereinafter “photography”), distinguishing between professional photographers and amateurs who are doing precisely the same things, at the same times, and in the same places, is arbitrary, capricious and unconstitutional.”

NPPA has always argued that permits in parks should only be required if the photographer’s presence would create a disruption. As the comments explained, “We believe that the proper question to ask is whether the photography creates any unusual impact on the land. If the activity presents no more impact on the land than that of the general public, then it should be exempt from permit and fee requirements.”

In the submitted comments Osterreicher went on to explain that, “unfettered access is necessary in coverage of the important public policy issues that arise in the conservation and use of public park resources. Journalists should be free to report to the public on public issues from public lands at any time. That protection should extend not only to individuals traditionally identified as newsgatherers, but also for freelance visual journalists and members of the public who may use cameras on a speculative basis to photograph or film activities on public lands without having an assured media outlet for their work.”

The other groups joining in the letter were: the American Photographic Artists, the American Society of Media Photographers, the American Society of News Editors, the Associated Press Media Editors, the Association of Alternative Newsmedia, the Graphic Artists Guild, the North American Nature Photography Association, PACA Digital Media Licensing Association, the Radio Television Digital News Association, the Reporters Committee for Freedom of the Press, the Society of Environmental Journalists, the Society of Professional Journalists and the White House News Photographers Association.

 

Posted in Access, American Society of News Editors, First Amendment, First Amendment rights, National Press Photographers Association, Newsgathering, NPPA, Permits, photographers, Photographers' Rights, photojournalism, Public Photography, Regulations limiting photography, Reporters Committee for Freedom of the Press, White House News Photographers Association, WHNPA | No Comments »

Coalition For Court Transparency Requests Live Broadcast Of Same-Sex Marriage Cases In Letter To Chief Justice Roberts

January 28th, 2015 by Mickey Osterreicher and tagged , , , , ,

January 28, 2015 – Washington, D.C. — In a letter to U.S. Chief Justice John Roberts, the Coalition for Court Transparency today requested “that audio-visual coverage of oral arguments in the same-sex marriage cases be broadcast live, enabling the world to witness history as it happens.”

“We hope that the Court takes this historic moment as an opportunity to move into a new era of openness by permitting live audio-visual coverage of the arguments in the same-sex marriage cases,” said Mickey H. Osterreicher, general counsel for the National Press Photographers Association.

In addition to the historical nature of the cases, the Coalition highlighted how this act of transparency could burnish the Court’s reputation.

“In our modern era, an institution’s legitimacy is often driven by the public’s perception of its openness and transparency,” the letter said. “When decisions are made in cases that provoke strong emotions, transparency allows the public to be assured that the process was fair and that the institution is functioning properly. Simply put: televising the oral arguments will ultimately strengthen the public’s perception of the Court by imbuing its result with greater legitimacy.”

“Recent polling shows three-quarters of Americans support televising Supreme Court proceedings,” said Alex Armstrong, spokesperson for the Coalition. “Oral arguments in the upcoming marriage cases will be historic, and the whole nation will be eager to follow along. There’s no better time to turn on the cameras.”

The full letter is can be read OpenSCOTUS_Letter 01-27-15

Posted in Access, Cameras in the Courtroom, Coalition for Court Transparency, First Amendment, National Press Photographers Association, NPPA, SCOTUS, US Supreme Court | No Comments »

Important Info for Those Covering Ferguson

November 23rd, 2014 by Mickey Osterreicher and tagged , , , , , , , , , , , , , ,

For all NPPA members and visual journalists in Ferguson, Missouri – Please print out the federal court orders below and keep them with you at all times.

Also please contact NPPA general counsel Mickey Osterreicher if you are interfered with or arrested. You may call or text his cell: 716.983.7800 or email lawyer@nppa.org.

You may also call 800.336.4243, which is the Reporters Committee for Freedom of the Press Legal Defense Hotline.

County Order

Highway Patrol Order

Ferguson Order

Posted in Access, Ferguson, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Recording Police, Reporters Committee for Freedom of the Press, Visual Journalists | No Comments »

Court Orders Police in Ferguson Not to Interfere with Individuals Who are Photographing or Recording in Public

November 21st, 2014 by Alicia Calzada and tagged , , , , , , , , , , , , , ,

Today a federal judge for the Eastern District of Missouri granting three orders agreed and consented to by the Missouri State Highway Patrol, the County of St. Louis Missouri and the City of Ferguson. The orders signed by Judge John A Ross for the Missouri State Highway Patrol and the County of St. Louis enjoins those entities from  “interfering with individuals who are photographing or recording at public places but who are not threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.”

The order directed at the City of Ferguson more specifically prohibits the city from enforcing or threatening to enforce “any rule, policy or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or interfere with any individual, including any member of the media or member of the public photographing or recording in public places unless that person is threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.”

The fact that the orders protect photographers who are not “physically” interfering with law enforcement prevents agencies from claiming that the act of reporting is in itself threatening or otherwise an interference. “Journalists and law enforcement officials share a common responsibility – we all serve the public – raising the awareness of law enforcement personnel about these matters after the fact only means that journalists were prevented from doing their jobs, and because of that, the public was not properly served,” said NPPA president Mark J. Dolan.

In August the ACLU file a lawsuit in federal court against police agencies in Ferguson on behalf of photographer Mustafa Hussein. The complaint sought a preliminary injunction against police policies of demanding and ordering members of the media and public to stop recording the police acting in their official duty on public streets and sidewalks. It also sought to have the court declare that the police policy on its face and as-applied violates the First and Fourteenth Amendments by chilling free speech without due process.

In support of that lawsuit, the NPPA filed a Declaration outlining some of the issues faced by visual journalists as well as how NPPA’s general counsel, Mickey H. Osterreicher, tried to deal with those situations while he was in Ferguson this summer. The bigger issues were the fact that police tried to keep the media in areas they had established rather than allow  access to traditionally open public forums such as sidewalks. Osterreicher suggests that journalists print out and carry the orders to show police who may be in contempt. “While it is gratifying that the police agencies agreed to these self-evident liberties it is still troublesome that they have apparently failed to provide any substantive training regarding constitutional rights. As we have seen time and time again without proper training  p0lice frequently disregard the Bill of Rights and any enforcement orders as just another piece of paper,” Osterreicher said.

NPPA Executive Director Charles W. L. (“Chip”) Deale added, “We are pleased that the court again has recognized and emphasized the important and Constitutionally-protected right of visual journalists to perform their critical news-gathering function free of harassment and undue restrictions. The NPPA hopes and trusts that law enforcement agencies in and around Ferguson will unerringly abide by these court orders.”

The orders resolves the case, but the federal court specifically retains jurisdiction to enforce the injunctions.

Posted in Access, ACLU, Assault on Photographers, Ferguson, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Visual Journalists | No Comments »

NPPA Joined by 17 Groups Protest Forest Service Photo Permits

October 1st, 2014 by Alicia Calzada and tagged , , , , , , , , ,

The National Press Photographers Association, joined by seventeen news organizations, photographers’ organizations and First Amendment advocacy groups sent a letter to U.S. Forest Service Chief, Thomas L. Tidwell, opposing the Forest Service’s proposal to make permanent its interim directive on filming in the nation’s wilderness areas. The letter expressed the groups concern that the proposal would apply new criteria in deciding whether to issue a permit for filming in Congressionally-designated wilderness areas as well as the permanent directive’s vague language and failure to make a clear distinction between still photography, film and videography for newsgathering purposes and “commercial” film and still photography.

Tidwell has been quoted recently in the media as saying the “US Forest Service remains committed to the First Amendment,” but Osterreicher, on behalf of the organizations, explained in the letter that the language of the “provisions in the draft directive” does not make it clear that it does “not apply to news gathering or activities” and urged the Forest Service “to  work closely with us to craft an unambiguously worded policy that protects not only our natural resources but our First Amendment guarantees.”

The letter also expressed the groups concern “not just for individuals traditionally identified as newsgatherers, but also for freelance visual journalists and members of the public who may use cameras on a speculative basis to photograph or film activities on public lands without an assured media outlet for their work.”

Of even greater concern to the group is “that a permit could be arbitrarily denied because a member of the Service with such authority might believe that a news story did not comport with the vague notion of protecting ‘wilderness values.’” The group contends that “the proposed permanent policy limits far more speech than is necessary to achieve the government’s stated purpose. Not only does requiring a permit for ordinary newsgathering create a chilling effect on freedom of speech and of the press, but also granting/the Service the ability to deny such a permit in the case of a journalist or news organization would, we believe, create an unconstitutional licensing obligation or  – worse – a prior restraint on those newsgathering activities.”

Those joining in the letter were: American Photographic Artists, American Society of Media Photographers, American Society of News Editors, Associated Press, Associated Press Media Editors, Associated Press Photo Managers, Association of Alternative Newsmedia, Digital Media Licensing Association, National Federation of Press Women, National Newspaper Association, National Press Club, Newspaper Association of America, North American Nature Photography Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Society of Environmental Journalists and Society of Professional Journalists.

 

 

Posted in Access, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, Permits, photographers, Photographers' Rights, photojournalism, US Forest Service | 1 Comment »

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