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First Amendment Ruling from the Supreme Court

June 28th, 2012 by Alicia Calzada and tagged , , , ,

Though the attention of the nation today is focused on the Supreme Court’s Health Care ruling, it should not be missed that the justices released an important First Amendment decision, striking down the Stolen Valor Act by a vote of 6-3. The Act made it illegal to lie about receiving a medal or military decoration. The bottom line appears to be that “falsity alone may not suffice to bring the speech outside the First Amendment.”

You can read about the decision here: http://www.scotusblog.com/2012/06/court-holds-stolen-valor-act-unconstitutional-dismisses-first-american-financial-v-edwards/

Those arguing for the law to be upheld said that false speech had no value and therefore should not be protected by the First Amendment.

The NPPA was part of a coalition of 24 news media organizations that signed on to an amicus brief arguing that the Act would make the government the arbiter of truth and allowing punishment for false speech would eviscerate press freedom.

The brief can be found here: http://www.rcfp.org/browse-media-law-resources/briefs-comments/united-states-v-alvarez

Supporting the notion that the most appropriate way to fight disagreeable speech is with more speech, and in the marketplace of ideas, the court said:

The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony.”  Once the lie was made public, he wasridiculed online, his actions were reported in the press, and a fellow board member called for his resignation. There is good reason to believe that a similar fate would befallother false claimants.

The entire decision can be read at this link: http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf

 

Posted in First Amendment, First Amendment rights, National Press Photographers Association, Uncategorized | No Comments »

NPPA General Counsel Speaks on Photojournalism Issues at National Press Club

June 28th, 2012 by Advocacy Intern and tagged , , , , ,

Mickey H. Osterreicher, general counsel for the National Press Photographers Association (NPPA), spoke at the National Press Club (NPC) in Washington, D.C. on June 27, 2012 where he warned NPC members of ongoing issues concerning copyright infringement and the assault on the right to photograph in public places.

“It’s vital for citizens and journalists to know their rights when taking pictures or recording in public places. It’s even more crucial that police departments have appropriate policies and continuously train their officers regarding those rights,” Osterreicher said following the speech.

Osterreicher, who spoke to the NPC last January on a similar topic paid particular attention to the increasing prevalence of police interfering with the rights of the public and the media to photograph in public places.  He noted that there have been a growing number of arrests of citizens and photographers who take pictures, particularly those who have documented activist gatherings such as the Occupy protests.

Osterreicher attributed the increase in these incidents to the widespread proliferation of cameras and smartphones, which make it possible for anyone to photograph and record matters of public concern and then provide that material to the rest of the world via the Internet.  He said that police nationwide have shown a reluctance to allow such documentation, and have often responded with hostility and threats of arrest.

“I think it’s the culture of the police,” Osterreicher said.  “Their idea of serve and protect often means protecting people  and other officers from having their pictures taken.”

The NPPA has come to the defense of many of these photographers, both professional and amateur, because of its belief that government officials should never be left to determine what is or is not a newsworthy picture or story. The organization urges offending police departments to drop charges and to adopt policies that do not interfere with the public’s right to photograph.

Osterreicher talked about training sessions he has held with several police departments on how to interact with the press,  his work with the Chicago Police and the Reporters Committee for Freedom of the Press during the NATO Summit and his preparations for the upcoming national political conventions.

He said he offers this service whenever he writes to police departments that have had incidents with photographers. “People ask me ‘Why do you write so many letters?'” Osterreicher said. “Well, the answer is that it’s cheaper than bringing a lawsuit.  It’s cheaper for everyone, but as the police so often say ‘we can do this the easy way or the hard way,’ I think that a letter is the easy way but in some recently filed lawsuits NPPA has provided support against those departments and officers who blatantly violated our members’ constitutional rights.”

Osterreicher also spoke about instances in which police have taken cameras and phones and deleted photos or compelled the person who took the photos to do so.  He reminded members of the NPC that under no circumstances do officers have the right to delete or destroy photographs or video.

Osterreicher said that he is hopeful that incidents like these decline once police are educated and trained regarding the rights of the press and public to photograph and record.

“The police aren’t going anywhere.  The media isn’t going anywhere.  We need to find a way to do our jobs without interference.”

 

Posted in Access, Assault on Photographers, Attack Photographers, Cameras, cell phone cameras, Chicago Police, First Amendment, First Amendment rights, law, Lawsuit, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, Recording Police, Reporters Committee for Freedom of the Press, video cameras | No Comments »

Daily News enforcing the copyright of Baldwin photo

June 25th, 2012 by Alicia Calzada and tagged , , , , ,

Well-known journalism commentator Jim Romesko got snagged with a cease and desist letter from the New York Daily News, and writes about it here.

Like many others, Romenesko used the Daily News’ photo of Alec Baldwin when writing about the incident between Baldwin and their photographer earlier this week.

The blogger complied with the publication’s request, which was to instead use a watermarked image that was provided with the cease and desist letter, but I’m not sure that he entirely got the point. In his post, he commented that “just out of curiosity, did you get ABC’s permission to post these photos? Or did you do as I did with your photo, which is give credit.”

While I have no idea whether TNDN was authorized to use the ABC photos (newspapers license work all the time, so I have no reason to think that they didn’t), what I do know is that any newspaper, or blogger, who thinks that they are complying with copyright law as long as they “give credit” lacks understanding of copyright law.

Some have asked whether Romesko’s use might qualify as fair use, and the answer is no. He was not commenting on the photo, he was commenting on the events in the photo. Which makes it no different than any other news photo use. Commentary on the photo would be “look at the dexterity and skill and quick response the photographer taking this picture must have had to catch this moment.”

Kudos to the Daily News for asserting their copyright and hopefully Romenesko will get permission next time he wants to use a photo. Frankly he got let off the hook pretty easily compared to some. After all, it’s what keeps the industry that he reports on in business.

 

 

Posted in Alec Baldwin, copyright, NY Daily News, photographers, photojournalism | No Comments »

Photojournalist or Paparazzo? A Distinction with a Difference

June 21st, 2012 by Mickey Osterreicher and tagged , , , , , , , , , , , ,

All paparazzi are photographers.

But not all photographers are paparazzi.

The problem is that in a time of catchy phrases, it seems that many media outlets are unable or unwilling to take the time to distinguish between the two.

In the aftermath of actor Alec Baldwin’s assault on photographers who were waiting for him on a public street outside the New York City Marriage License Bureau this week, the distinction between the use of the pejorative “paparazzi” as a way to denigrate members of the media is not only unfortunate, but does a disservice to all photographers and journalists who strive to earn a living through visual storytelling.

As a former photojournalist with almost 40 years of experience in both print and broadcast journalism, I strongly believe in personal accountability for our actions and the importance of maintaining the credibility of our profession. I also agree that “accuracy in our work and integrity in our relationships with the public we serve are essential qualities for all photojournalists.” It is for that reason that I am a strong proponent of the NPPA Code of Ethics, which “attempts to foster the spirit of honesty in all aspects of our professional lives.”

In this era of tweets and live-streaming it is certainly important to get the news out fast, if not first; but accuracy should still be the overriding priority. Broadcasting or publishing the absolute latest information does not absolve the press of its obligation to be responsible. The public may wish to dwell in gossip and speculation but reporters, broadcasters, editors and publishers should not.

Which brings us back to the issue of who is a photojournalist and who is a paparazzo? A variety of sources define paparazzo as a noun referring to a freelance photographer who specializes in images of famous people for sale to magazines and newspapers while often invading their privacy to obtain such photographs or video. The word “paparazzi” is the plural of “paparazzo.”

The term gained popularity after the 1960 film La Dolce Vita, directed by Federico Fellini, in which one of the characters is a news photographer named Signor Paparazzo. It is said that Fellini used the word because in Italian it is similar to another word for small mosquito, and to the filmmaker was descriptive of the very annoying noise made by that buzzing insect. In the years since it has been used to describe Ron Galella and his photographic pursuit of Jacqueline Kennedy Onassis, leading to the case of Galella v Onassis and a restraining order keeping Galella a “respectful” distance away from the late First Lady and her children.

Over the years there have been numerous lawsuits by photographers who claim they were injured by celebrities, and some by celebrities who have sued to enjoin photographers from coming too close or invading their privacy.

The term “photojournalist,” on the other hand, refers to those dedicated to a specific aspect of journalism that captures still images and audio-visual recordings for public dissemination in print, by broadcast or online. It is widely understood that photojournalists adhere to strong ethical guidelines ensuring honest, objective and compelling images, created in a straightforward manner while remaining as unobtrusive as possible.

Standing on a sidewalk to take a picture of a celebrity does not make a photographer a paparazzi any more than if he or she were waiting to take a picture of a politician or a criminal. Photojournalists often risk their lives and sometimes are killed while covering wars, political uprisings and natural disasters. Would anyone think to call them paparazzi?

The so-called “legitimate press” has always sought to distinguish itself from the less-than-savory “tabloid paparazzi.” Lately traditional publishers also attempt to distinguish between “mainstream media” and citizen journalists, activists, and bloggers. But all groups use video and still images taken by the very people they distance themselves from in an attempt to compete which blurs the line and makes the definition of who is a journalist even more elusive. This in turn makes the public less trusting and ultimately undermines a free and vibrant press.

None of this absolves anyone of us from our responsibilities. No matter how quickly we deliver it, the message should still be worth hearing. No matter how up-close we can get, the images should still be worth viewing. No matter how advanced the technology, we are all still human.

When reporting on the altercation between New York Daily News photographer Marcus Santos and celebrity Alec Baldwin, it would be wise to look at Santos’ career before labeling him as a paparazzo. According to his website he has been a photojournalist since the late 1990’s with a long list of credits and awards. He prides himself on covering spot news, which is evidenced by his photos of the October, 2011 East River helicopter crash. He has also covered world events in Haiti, Pakistan and Sri Lanka. Marcus tells me that he was dispatched by the Daily News to photograph Baldwin after the paper received a tip that he was at the marriage license bureau. So for anyone to say he is a paparazzo is not only grammatically incorrect, but totally inaccurate. In an interview with Charlie Rose after the incident, Baldwin also said that Marcus was not part of the “legitimate press” in a further attempt to justify his actions that day. Such self-serving comments are not only wrong but demean all photojournalists.

In a society increasingly reliant on information and communication, those in the media should be ever vigilant of their obligation to provide accurate, unbiased and timely information rather than rushing to fill space and time with the latest titillating revelations. That goes both for photojournalists who unintentionally get drawn into the story and for the journalists, editors and headline writers who report on those incidents.

Posted in Alec Baldwin, Assault on Photographers, Attack Photographers, Code of Ethics, National Press Photographers Association, News Photography, Newsgathering, NPPA, NY Daily News, Paparazzi, Paparazzo, photographers, Photographers' Rights, photojournalism | No Comments »

NPPA Responds to Rough Treatment of Photographer by Nev. Police

June 20th, 2012 by Advocacy Intern and tagged , , , , ,

The National Press Photographers Association (NPPA) sent a letter to Sheriff Haley of the Washoe County (Nev.) Sheriff’s Office today requesting that the department conduct an investigation regarding an incident in which sheriff’s deputies injured and detained a photographer covering a brush fire earlier this week.

Sixty-year-old photojournalist Tim Dunn suffered scrapes to his hands and face on Monday while attempting to photograph a fire in Sun Valley, Nevada, after he was thrown to the ground and handcuffed by sheriff’s deputies and cited for obstruction and resisting.

“This is just the most recent incident in a rash of similar police abuses across the country,” said Mickey H. Osterreicher, general counsel for NPPA.  “While in some situations the press may have no greater rights than those of the general public, they certainly have no less right of access on a public street.”

Dunn, who has worked for the Reno Gazette-Journal for the past 21 years, was not arrested following the incident despite being physically manhandled by the deputies.  Sheriff’s Deputy Armando Avina confirmed that the incident occurred but would not comment on it because reports of the case had not been completed.

NPPA’s letter to the sheriff also requested that the charges against Dunn be immediately dropped, and that the department issue orders directing deputies to cease such activity against photographers.

“While not an expert on Nevada law, it has been my experience that a person must be physically obstructing an officer and that mere presence does not satisfy the elements of that crime,” Osterreicher said.  “Using the catch-all charge of resisting against a 60-year-old, well respected photojournalist is reprehensible.”

Dunn was covering a brush fire that destroyed two homes when he said he was told to leave the area and directed to a location farther away.  Dunn said he complained that the location was too far away to take photographs, and that he and Capt. John Spencer got into a heated conversation.  It was then that Dunn said one deputy shoved his foot into the award-winning photographer’s back to get him on the ground and another deputy pushed his face into the gravel.

“It appears that all of your personnel acted in an arbitrary, capricious and unprofessional manner and appear to have no concept of the First Amendment rights granted to the press under the United States Constitution and Nevada Statutes,” said Osterreicher in his letter to the sheriff.  “NPPA stands ready to work with your department to help develop reasonable and workable policies and practices in order to avoid similar situations.”

Beryl Love, Gazette-Journal executive editor, said there have been multiple instances in the past year when staffers were denied access to scenes where they had a right to be.  Love said the newspaper is preparing a formal complaint to local law enforcement and advising Dunn on possible civil actions.

Dunn said the deputies accused him of impersonating a firefighter by wearing yellow protective fire gear and a helmet and goggles.  Sierra Front Media Fire Guide, published by a coalition of state and federal agencies, recommends wearing these items while covering fires.

Dunn said that he was detained for more than half an hour after being handcuffed.  He said he is disappointed by Monday’s incident and confused as to why the deputies responded in the way they did.

An Aug. 1 court date is scheduled for Dunn’s charges of obstruction and resisting.

Posted in Access, First Amendment, National Press Photographers Association, photographers, Police, Uncategorized | No Comments »

An Open Letter to Alec Baldwin

June 19th, 2012 by Mickey Osterreicher

An Open Letter To Mr. Alec Baldwin:

Today when you attacked photographers who were waiting outside the city Marriage License Bureau in New York City, it was not the first time that you’ve assaulted members of the very media who helped to make your name a household word. It’s been reported that after today’s incident you Tweeted, “A ‘photographer’ almost hit me in the face with his camera this morning. #allpaparazzishouldbewaterboarded.” You then continued to display your insensitivity by Tweeting, “I suppose if the offending paparazzi was wearing a hoodie and I shot him, it would all blow over …”.

Rather than make light of a national racial tragedy, I suggest that if you don’t want to be recognized when you go out in public it is you who should be wearing something over your head.

Eyewitnesses to today’s incident report that not only were the photographers not near you at the time you aggressively went after them, but that they were in retreat as you continued your unprovoked assault. Whether you like it or not, you are a public figure involved in a newsworthy event. And as you well know from your lifetime of celebrity public life, there is no expectation of privacy on a public street.

No one is really surprised that you continue to act in this manner, given past performances. But as a former photojournalist who is now general counsel for the National Press Photographers Association (NPPA), I object to your combative actions against photographers who were doing nothing more than waiting to take your photograph, an activity you’ve willingly participated in thousands of times, posing when you thought it was in your best interest.

I do not know whether those you attacked have filed assault charges, but I hope they do. Because until you and others like you are held accountable for your actions, this supposed “open season” on photographers will unfortunately continue. It is all too easy to denigrate working journalists by calling them “paparazzi,” but not all photographers deserve that demeaning title, just as all actors are not boors or bullies.

For someone who is politically active and who routinely calls for holding the government accountable, which is one of the central roles of the press, it is more than a little disappointing to watch you literally attack the media as you did today. I hope you pause to reflect on your criminal actions. Just think of the nice images you could have made walking hand in hand together, rather than the headlines you’ll get tomorrow for committing assault.

Normally I spend my time dealing with misguided police officers or security guards who incorrectly believe that they can abridge a person’s First Amendment rights to photograph and record in public. Maybe today you took your cues from them. In any case, the next time you see an adoring fan or anyone with a camera who is waiting to take your picture on a public street, why not just count to 10 and say “cheese.” In the meantime, please don’t assault the news photographers who are diligently working to earn a living wage.

Posted in Alec Baldwin, Attack Photographers, NY Daily News, Paparazzi, Twitter | No Comments »

Photojournalists and Pinterest

June 19th, 2012 by Alicia Calzada and tagged , , , , ,

Recently, I was asked to review Pinterest by Mark Loundy. I thought I would share with our readers my conclusions after signing up and reviewing the social networking site.

Photographers have two different concerns regarding Pinterest. The first is whether or not to participate in the service. The second is whether to encourage others to “pin” your photography and whether to object if and when they do.

1) Using Pinterest- by using Pinterest, you warrant that the images that you pin are yours and that you have a right to use them. This is at complete odds with the pinterest browser “pinning” tool, which enables you to grab photos from virtually any website and pin it to your “pinboard.” Photographers should be aware that they are putting themselves at risk by using Pinterest.

If you follow Pinterest’s “Best Practices” which are recommendations from the company, you are doing something called “in-line linking.” This means that you are not pulling the photo off of the site and hosting it in your site, rather you are using code to provide somewhat of a window to the host website.  Because copyright protects not just the copying, but the display of images, this could still be a copyright violation. In a very famous case from about five years ago, the Ninth Circuit held that Google was not violating copyright through its “google images” service, which utilizes in-line linking. See Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146, 1167 (9th Cir. 2007).  An important distinction is that google images are thumbnail images  (as are the images that propagate when you post a link on Facebook) while Pinterest posts are large images and the use on pinterest is akin to an article or content you might find on a news website. Furthermore, unlike Google Images, Pinterest does not provide a transformative service like the Google image search, rather it enables average users to use photos in a way that they would also be used in the marketplace.  So while there may be some defenses available to the Pinterest user, there is no guarantee that it would apply.  Photographers who use Pinterest must realize that they are probably violating copyright when they post others’ images.   Like everything, a decision to use Pinterest should involve a risk – benefit analysis.

2) Being the subject of “pinning.”

If you want to avoid being subject to “pinning” there are a couple of options:

Pinterest has a code that you can insert into your website’s html code that blocks pinning. The addition is “<meta name=”pinterest” content=”nopin” />” (with the brackets), and is found at this link:https://en.help.pinterest.com/entries/21063792-Prevent-pinning-from-your-site.

The problem with relying on “opt out” is that this is not the way copyright works. Google books has a similar “opt out” policy and I believe that both policies turn copyright on their head. Copyright works by requiring the user to get permission from the copyright holder. The concept of copyright falls apart if you require the copyright holder to opt out of every potential user who had developed an opt out policy.

You can also use a web company, software or code that is resistant to in-line linking, such as PhotoShelter’s website service. This is a better solution as it protects you not only against pinterest, but similar services. With new social media companies popping up every day, your best bet is to display your images in a manner that makes them difficult to rip off, but that still provides good SEO.

Of course these options are only helpful with websites that you control, which still leaves you out in the cold in regards to the work that you have licensed to a client for use online. There is also a DMCA takedown procedure for pinterest.

Many photographers have decided that Pinterest has value that makes it worth allowing pinning.  Whether or not you want to allow it is a personal decision that should be based on your business model.

Posted in contracts, copyright, Photographers' Rights, photojournalism, social networking | No Comments »

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