September 3rd, 2015 by Mickey Osterreicher and tagged Access, California, first amendment, free speech, journalism, national press photographers association, Newsgathering, photojournalism
Today the National Press Photographers Association (NPPA) sent a letter to California Governor Jerry Brown urging him to veto SB 142, which would create strict liability for anyone operating a drone over the “airspace overlaying the real property” of another person or entity without “express consent.” The letter was joined by 32 other media organizations.
“We believe this bill will unduly restrict the development of new uses for Unmanned Aircraft Systems (UAS) by establishing a technology-specific restriction that is impossible to comply with, impossible to enforce, and likely will conflict with the existing authority and proposed new regulations of the Federal Aviation Administration (FAA), said NPPA general counsel Mickey H. Osterreicher, in the letter. He went on to say, “while the bill acknowledges the FAA Modernization and Reform Act of 2012, its language flies in the face of both common sense and federal preemption,” adding “the chilling legal repercussions of this bill will tax an overburdened court system and thwart the federal government’s efforts, in which we are participating, to bring about a sensible regulatory regime for this new technology.”
Those groups joining in the letter are: Advance Publications, Inc., American Society of News Editors, Associated Press Media Editors, Associated Press Photo Managers, Association of Alternative Newsmedia, CNN, First Look Media, Inc., Gannett Co., Inc., Hearst Corporation, KBAK-TV (Bakersfield), KERO-TV (Bakersfield), KGTV-TV (San Diego), KMPH-TV (Fresno), KXTV-TV (Sacramento), Los Angeles Times Communications LLC, Merced Sun-Star, Newspaper Association of America, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Scripps Media, Society of Professional Journalists, Student Press Law Center, The Associated Press, The Desert Sun, Palm Springs, The Fresno Bee, The McClatchy Company, The Modesto Bee, The Sacramento Bee, The Salinas Californian, The (San Luis Obispo) Tribune, Tulare Advance-Register and Visalia Times-Delta.
Posted in Access, broadcasting, California, drone, Drones, First Amendment, First Amendment rights, Newsgathering, photographers, photojournalism | No Comments »
January 7th, 2014 by Mickey Osterreicher and tagged copyright, copyright infringement, photographers, social media
Mavrix Photo has filed a copyright infringement lawsuit against RollingOut.com and its owner Steed Media Group Inc. for publication of photographs of Beyonce and Kim Kardashian without its permission, consent or license.
The complaint, filed on January 3, 2014 in the United States District Court for the Central District of California Southern Division, alleges among other things that the Defendants “have driven significant traffic to RollingOut.com in large part due to the presence of the sought after and searched-for celebrity images that frame this dispute. All of this traffic translates into substantial illgotten commercial advantage and revenue generation for Defendants as a direct consequence of their infringing actions.” The complaint further alleges that “Defendants’ acts of infringement are willful because, inter alia, the Defendants are sophisticated publishers with full knowledge of the strictures of federal copyright law and the basic requirements for licensing the use of copyrighted content for commercial exploitation.”
According to its website Mavrix Photo was formed in 1996 and “is a Global Celebrity News Photo Agency with an Online Image Database of more than 435,000 images and thousands of video clips.” Steed Media Group is a print and digital advertising company “prevalent in most urban markets around the country.”
Mavrix is demanding a jury trial and is seeking actual damages and statutory damages for willful infringement of at least $150,000 per photograph.
Posted in Beyonce, California, copyright, copyright infringement, Kim Kardashian, Lawsuit, photographers, photojournalism | No Comments »
September 20th, 2013 by and tagged Access, first amendment, free speech, journalism, journalist, national press photographers association, NPPA, photographers, photography, photojournalism, photojournalist, police, recording
“I observed a male nonchalantly taking numerous pictures inside a purple-line train.”
If this excerpt from a Federal “Tip and Lead” report out of Los Angeles doesn’t necessarily convince you that a crime is afoot then you’re probably not alone. Nonetheless, that photographer, and many others like him, are now in a federal database under a plan to single out people who may be planning terrorist activity
The problem with the Nationwide Suspicious Activity Reporting Initiative (SARI) is that many of the activities it targets seem well, unsuspicious. Worse yet, many of those questioned under the program were engaging in activities protected by the First Amendment. Despite revisions to try to improve the program, people are still being added to the database who appear to have been doing nothing wrong. The offense of a man recently added to the database: being “very unfriendly.” Another was reported for buying a large quantity of cigarettes. Both individuals were of Middle Eastern decent. While the language initiative specifically prohibits racial profiling, a cursory investigation of what files are available suggests people are occasionally targeted for their race. The measure also appears to have the effect, intended or otherwise, of targeting photographers in particular.
Today, in a continued effort to raise awareness of the program and improve its operational standards, the ACLU released a series of the federally collected reports online. The NPPA joined the ACLU and 25 other organizations in a letter demanding reform. The groups also held a press conference in San Francisco addressing the impact of Suspicious Activity Reporting (“SAR”).
One of the central issues with the SAR initiative stems from confusion over what behavior falls within the programs purview. The 2009 revised standard for the Director of National Intelligence Information Sharing Environment (ISE), one of a pair of programs that make up the initiative, defines suspicious behavior as observable actions “reasonably indicative of pre-operational planning related to terrorism or other criminal activity.” Further, the revision makes clear that “the same constitutional standards that apply when conducting ordinary criminal investigations also apply to local law enforcement and homeland security officers conducting SAR inquiries.” The media groups applauded this as an improvement over previous versions of the program, but note that “the failure to clearly state that ISE policy did not authorize the collection, retention or dissemination of personally identifiable information in violation of federal regulations . . . has led to confusion and abuse.”
In addition, The FBI’s eGuardian program, the other arm of the initiative, does not meet the higher standards of the ISE. The continued reporting of non-threatening behavior suggests that this disjoint is one of the causes of the problem.
Today’s letter also observed that “Based on the SARs obtained thus far, photography and videography are frequently reported without additional facts that render these constitutionally-protected activities inherently suspicious. This reporting trend matches anecdotal reports from photographers who frequently complain that they are not only detained and questioned, but are also prevented from taking photographs and video and deprived of their equipment by police.”
The NPPA has been involved with dozens of similar incidents. They are troublingly common, even without a federal program that enables, if not encourages their occurrence. “As part of the ‘See Something Say Something Program’ the NPPA is deeply concerned that these policies create an unnecessary climate of fear and suspicion throughout the country under the guise of safety and security for otherwise First Amendment protected activity,” said NPPA general counsel Mickey Osterreicher.
Among the reforms suggested in today’s letter, the groups recommended the government “[re]move photography and other activities clearly protected by the First Amendment from inclusion in lists of SAR categories or other guidance criteria to prevent the unlawful stops, detention, and harassment of photographers, videographers, and journalists.”
Such a revision would be a step in the right direction to ensuring valuable First Amendment activities are not illegally obstructed, and that it’s the people who are monitoring the government, and not the other way around.
Posted in Access, ACLU, California, cell phone cameras, Department of Justice, DOJ, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, SAR, Street Photography, Suspicious Activity, video cameras, Visual Journalists | No Comments »
August 16th, 2013 by and tagged California, California State Assembly, celebrities, children, Halle Berry, harassment, hollywood, Jennifer Garner, Justin Bieber, legislators, Paparazzi, unconstitutional
Earlier this summer the California legislature proposed a new “anti-paparazzi” bill, which NPPA opposes. More recently, Actresses Halle Berry and Jennifer Garner testified before the California State Assembly, voicing their support for the bill that carries with it serious First Amendment implications. The measure would make it illegal to photograph a child because of their parent’s job (i.e, acting) without the parent’s permission, and expands the scope of existing California harassment law while increasing the penalty for a violation. Photographers convicted under the measure could face up to year in prison. SB 606 would also allow an aggrieved party to pursue enhanced civil suit against a photographer.
If the bill is ultimately signed in to law, anyone with a camera who tries to get a snapshot of a celebrity’s child could be liable if their conduct “alarms, annoys, torments, or terrorizes the child” and causes “substantial emotional distress.” It’s not the clearest of legal standards, and the bill doesn’t offer much more in the way of explanation, something NPPA General Counsel Mickey Osterreicher took issue with in opposing the bill. “We are extremely concerned that the bill as it pertains to photography and recording is overly broad and vague and infringes upon otherwise protected forms of speech and expression,” Osterreicher said, also noting that the terms used in the bill are “vague and susceptible to subjective interpretation.”
The mercurial relationship between the Hollywood “paparazzi” and the stars they photograph is well documented. Confrontations are not uncommon. Protecting children is certainly a laudable goal, but there are already laws in place for situations when someone, photographer or otherwise, steps over the line. With this in mind, Osterreicher contends that the measure in question unjustifiably blurs the line between actual harassment and valuable First Amendment activities, saying “[the bill] fails to recognize those acts done for valid newsgathering or expressive purposes and in fact creates additional liability for visual journalists and members of the public with a camera.”
“[T]he First Amendment has permitted restrictions on few historic categories of speech, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct,” Osterreicher continued. “Visual images and recordings of another person, albeit a child, who is out in public where there is no reasonable expectation of privacy should not be added to that list.”
Again, there’s a difference between punishing photographers who harass someone and defining photography as harassment in and of itself.
This isn’t the first time the California legislators have targeted photographers. A 2010 anti-paparazzi law was called into question earlier this year, when a judge threw out charges against a photographer who authorities say was driving recklessly while attempting to get picture of Justin Bieber. The judge said the law was unconstitutionally broad and violated the First Amendment. The NPPA along with the Reporters Committee for Freedom of the Press and six other media organizations filed and Amicus Letter Brief on behalf of the photographer. That ruling is currently under review.
SB 606 passed the California State Assembly and is set to go to appropriations committee. As the bill moves closer to becoming law, legislators should take care not to allow a distaste for the manner in which some photographers conduct themselves to undermine their ability to uphold their duty to defend free speech rights guaranteed to all citizens.
Posted in anti-paparazzi, California, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, Paparazzi, photographers, Photographers' Rights, photojournalism, Public Photography, Reasonable Expectation of Privacy, Reporters Committee for Freedom of the Press | No Comments »
June 13th, 2013 by and tagged Access, Arrest, California Department of Parks and Recreation, first amendment, free speech, journalism, law, Legal, Mickey Osterreicher, national press photographers association, NPPA, photographers, photography, photojournalism, photojournalist, recording, Southern California Edison, trespassing, video
A month after being notified the California Department of Parks and Recreation has responded to a letter sent by NPPA general counsel Mickey Osterreicher regarding an incident during which parks employees detained a news crew and ordered them to delete their footage. KGTV Team 10 reporter Mitch Blacher and photojournalist Arie Thanasoulis were on public property at San Onofre State Beach on April 29, 2013 shooting footage for a story on the San Onofre Nuclear power plant when they were approached by a parks employee who accused them of trespassing, blocked their vehicle and ordered them to stop recording.
That employee, later identified as Bob Warman, then called State Parks Police Officer Ennio Rocca who arrived and also proceeded to harass and threaten to arrest the pair for doing nothing more than recording video of the plant from an area open to the public. Officer Rocca in turn called an unidentified employee of Southern California Edison, who arrived on the scene dressed in full SWAT gear. The three of them then ordered the crew to delete whatever video they had already shot under threat of arrest.While the trio claimed the news crew was standing on private property, the “no trespassing” sign they referred to turned out to be for “no parking,” while a fisherman and a woman walking her dog are visible in video footage in an area they alleged was “secure.” Although the news crew complied with the unreasonable demand and deleted a file containing the footage they were able to broadcast a story using video contained on a second file.
In his letter Osterreicher called the actions of the parks officers “a clear violation of the First and Fourth Amendments.” “It is one thing for officers to act when there is probable cause, Osterreicher wrote, “it is quite another to abuse that discretion in order to create a climate that infringes upon free speech under the pretext of safety and security.” He requested that the “matter be fully investigated and the employees properly disciplined if so indicated.” Osterreicher also advised the department by email of another incident that occurred on May 14, 2103 involving its officers, who detained and questioned two other photographers, JC Playford and Gerry Nance, filming near the power plant gate.
Responding to the NPPA, California Department of Parks & Recreation Chief Counsel Claire LeFlore agreed that the officers had overstepped their bounds. “In hindsight, they may have acted with an overabundance of caution while detaining the news crew,” LeFlore said, “but there was never an intention to violate anyone’s constitutional rights.” LeFlore noted that the incident came shortly after the Boston Marathon bombing, and at that “staff was on high alert for the possibility of additional terrorist actions.” Osterreicher responded to that statement in a subsequent interview, saying, “it is indeed unfortunate that well-meaning people still somehow equate an act of terrorism with photography.” “In the Boston tragedy it should be duly noted that law enforcement requested anyone who had pictures or video of the event provide them voluntarily – not delete them,” he added.
The importance of defending sensitive targets is well understood, but, as Osterreicher noted, “in any free country the balance between actual vigilance and over-zealous enforcement is delicate.” LeFlore says all personnel involved in the incident have been counseled on how to properly deal with the press “so that First Amendment rights can be protected and both the press and [parks] staff can carry out their functions with minimal interference with each other.” Officers have also been counseled that there is no legal basis for the seizure or destruction of photographs or video.
Osterreicher also sent copies of his letter to officials from Southern California Edison, the owners of the plant but received no response. In its report 10News quoted a spokeswoman for the utility, as saying, “a security officer ‘responded conservatively when he indicated to a television crew his preference that they stop filming and delete their video.'” Osterreicher also responded to that statement, “Indicating a preference that someone stop filming is a far cry from illegally ordering someone to do so under threat of arrest.” “Aside from being factually incorrect, the arrogance of Southern California Edison in their failure to respond to our letter, unrepentant statements to KGTV and behavior of their employees speaks for itself,” he concluded.
The NPPA has offered to work with the California Department of Parks and Recreation to improve their guidelines and training regarding these matters in order to avoid similar situations. The parks department says it will consider NPPA suggestions in implementing an expanded staff training program.
KGTV reporter Mitch Blacher said in an email, “It is encouraging to see the California state parks police work to remedy the oppression of constitutional rights by their officers,” adding, “As American citizens and working journalists our treatment was highly troubling.” “More questions need to be asked as to why California parks police and staff followed the direction of non-sworn private security personnel instead of the federal and state constitutions they swore an oath to uphold.” 1oNews Special Projects Executive Producer Ellen McGregor added, “As a manager behind-the-scenes, who talked for quite some time on the phone with parks police that day, Mickey’s offer train the agencies on the First and Fourth Amendments proves the NPPA’s commitment to a free press, and the journalists at KGTV are grateful.”
Posted in Access, Assault on Photographers, Attack Photographers, California, detained, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, Regulations limiting photography, trespass | No Comments »
April 23rd, 2013 by and tagged Access, Anti-Paparazzi Statute, Assembly Member Richard Bloom, California, Constitution, first amendment, free speech, journalism, legislation, Mickey Osterreicher, national press photographers association, NPPA, Paparazzi, photographer, photographers, photography, photojournalism, recording, trespassing, video
*** UPDATE *** In the wake of opposition from NPPA and other groups the CA Assembly Judiciary Committee made both AB-1256 and AB-1356 “2 year bills.” A 2 year bill is one which will not move out of the policy committee this year. It is eligible to be taken up again at the beginning of the 2nd year of the biennial session thus the term “2 year bill.” In January, the Legislature will hear all bills introduced in the 1st year and those that pass muster will begin to move through the process. This is very significant because every other anti-paparazzi bill that has been introduced has flown through the Legislature. This is the first time one has been held up. While the AB-1256 and AB-1356 are not dead, this indicates the sponsors may have a difficult time getting out of Judiciary in January.
The National Press Photographers Association (NPPA) today sent a letter to California Assembly Member Richard Bloom opposing two recently filed anti-paparazzi statutes that he sponsored. The NPPA was joined by twenty-six other organizations in sending this letter, including the Associated Press Media Editors, Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society, Bloomberg News, North Jersey Media Group Inc., The New Yorker, E.W. Scripps Company, The New York Times, The Los Angeles Times, Society of Professional Journalists, Radio Television Digital News Association, The Associated Press, National Public Radio, Inc., The McClatchy Company, Reuters News, Time Inc., The Washington Post, Reporters Committee for Freedom of the Press, Picture Archive Council of America, Cox Media Group, American Society of News Editors, California Newspapers Partnership, The First Amendment Coalition, Courthouse News Service, The Newspaper Guild, Communications Workers of America, Association of Alternative Newsmedia and San Francisco Bay Media Associates.
The letter is written in opposition to proposed bill AB-1256, “An act to amend Section 1708.8 of, and to add Section 1708.9 to, the Civil Code, relating to civil law.” Proposed bill AB-1256 would expand upon California’s constructive invasion of privacy law. The letter also expresses opposition to AB-1356, “An act to amend Section 1708.7 of the Civil Code, relating to stalking,” which would enhance California’s anti-paparazzi statutes.
“We believe the creation of a civil cause of action for the “constructive invasion of privacy” is overly broad and vague and imposes greater civil penalties upon otherwise protected forms of speech and expression,” wrote Mickey Osterreicher, general counsel for NPPA. Osterreicher continued, “We are also concerned that remedies for invasion of privacy and trespass are already properly addressed by current California statutes and that statutory and punitive damages will further chill free speech and create uncertainty about liability.” “Additionally,” stated Osterreicher, “the definition of “commercial purposes” fails to distinguish those acts done for valid newsgathering purposes and in fact penalizes publishers and broadcasters along with visual journalists and members of the public with a camera.”
In the letter Osterreicher cites recent Supreme Court cases which support NPPA’s position that AB-1256 and AB-1356 are unconstitutional, including U.S. v. Stevens, 559 U.S. ___, 130 S. Ct. 1577 (2010) (holding the Animal Crush Video Prohibition Act of 2010 unconstitutional); California v. Superior Court of California (Raef), Case No. BS140861 (holding California statute AB-2479, an anti-paparazzi statute, unconstitutional); and Branzburg v. Hayes, 408 U.S. 665 (1972) (holding that “without some protection for seeking out the news, freedom of the press could be eviscerated”).
In another related matter a California assembly member withdrew his proposed “ag-gag” bill hours before it was to be considered at a scheduled hearing.
The measure, AB-343, sponsored by Jim Patterson, R-Fresno, originally imposed a “duty to report animal cruelty” that would have required “any person who willfully or knowingly photographs, records or videotapes animal cruelty . . .” to “submit all original photographs, recordings or video to local law enforcement and the owner of the animal(s) or a representative of the owner within forty eight hours of taking such photographs, recordings or video.”
NPPA and other groups opposed the bill as violating the Shield Law provisions of the California Constitution and Code of Evidence; as well as being unconstitutional under the First, Fourth, Fifth and Fourteenth Amendments in that it abridged free speech and press and constituted an unreasonable seizure lacking in due process.
“The NPPA is very proud to have the support of so many state and national organizations in its fight against these ongoing First Amendment erosions,” said NPPA President Mike Borland. “We hope that lawmakers around the country will realize that there is a better way to address their constituent’s concerns than to propose unconstitutional bills,” he added.
Posted in ag-gag, anti-paparazzi, California, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, Paparazzi, photographers, Photographers' Rights, photojournalism, Recording, Regulations limiting photography | No Comments »