May 16th, 2013 by Mickey Osterreicher
The National Press Photographers Association (NPPA), joined by The Motion Picture Association of America, Inc., The American Society of Media Photographers, The Radio Television Digital News Association, and The Society of Professional Journalists, has submitted letters to each of the Texas Senators, expressing extreme opposition to House Bill 912, which has passed the Texas House and is quickly making its way through the Texas Senate.
The bill makes it an offense to capture an image using an unmanned aerial vehicle, (UAV), commonly called “drones,” “with the intent to monitor or conduct surveillance.” This is the core of the offense, but there is no definition regarding what it means to “monitor” or what it means to “conduct surveillance.” NPPA’s attorney Alicia Calzada wrote, “We believe that this bill will create a significant impediment to journalists and others who are engaged in constitutionally protected speech.”
The current version of the bill has no exceptions for first amendment activity. “A journalist (or ordinary citizen) monitoring an environmental spill, documenting the aftermath of a disaster or simply monitoring traffic conditions could easily be committing a crime under this bill,” Calzada explained.
Multiple NPPA members also sent letters of objection. NPPA testified against the bill before a House committee earlier this session.
Posted in First Amendment, First Amendment rights, National Press Photographers Association, Newsgathering, Photographers' Rights, photojournalism, Public Photography, Texas, Unmanned Aerial Vehicle (UAV) | 1 Comment »
April 23rd, 2013 by Joan Blazich 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 | 3 Comments »
March 15th, 2013 by Joan Blazich and tagged Jeremy Barr, Joe Biden, Lucy Daglish, national press photographers association, NPPA, Philip Merrill College of Journalism, photographer, photography, photojournalist, rcfp, reporter, Reporters Committee for Freedom of the Press, Rockville, University of Maryland, Vice President, White House New Photographer's Association, WHNPA
The National Press Photographer’s Association (NPPA) today joined with the White House News Photographers Association (WHNPA) and the Reporters Committee for Freedom of the Press (RCFP) in sending a letter to Ms. Kendra Barkoff, Press Secretary for the Office of the Vice President of the United States. The letter, signed by NPPA president Mike Borland, WHNPA president Ronald Sachs, and RCFP executive director Bruce Brown, was written in response to a March 12 incident in which a journalist covering an event featuring the Vice President in Rockville, Maryland, was ordered by a Vice Presidential staff member to delete all images of the event on his camera.
As reported by the Capitol News Service, Jeremy Barr, a member of the Capitol News Service, a student-staffed news agency run by the University of Maryland’s Phillip Merrill College of Journalism, covered an event discussing domestic violence held by Vice President Joe Biden, Attorney General Eric Holder and Maryland Sen. Ben Cardin. Barr stated that he “unknowingly sat in a section of the crowd designated as a non-press area” because “I didn’t see any demarcation that would have designated a press entrance versus a general entrance.” “The event began and I took a few photos of each speaker,” said Barr, as “people a few rows in front of me were also taking photos.”
According to reports, after the event concluded Barr was approached by Vice Presidential staffer Dana Rosenzweig who asked Barr whether had taken any photos of the event. When Barr responded that he had taken photos, Rosenzweig demanded that Barr delete all images of the event from his iPhone while Rosenzweig watched, telling Barr that by sitting in the non-press area he had gained an unfair advantage over other members of the media who also attended the event. Barr complied with Rosenzweig’s request, stating that “I assumed that I had violated a protocol; I gave her the benefit of the doubt that she was following proper procedures.” Rosenzweig then ordered Barr to wait while she informed her supervisor of the incident, and after a ten minute delay Barr was permitted to leave.
Lucy Dalglish, dean of the Phillip Merrill College of Journalism, filed a formal complaint with the Vice President’s press office, stating that “this was pure intimidation,” and that “it’s clear from the circumstance that the journalist did nothing wrong.” Poynter reported that Dalglish stated in her complaint that “Rockville is not a third-world country where police-state style media censorship is expected.” Biden Press Secretary Kendra Barkoff apologized to Barr and Dalglish in separate phone conversations shortly after Dalglish’s complaint was filed. Barkoff told Dalglish that “the incident was a total miscommunication,” stressing that “it is never the press office’s policy to request that reporters delete photos.” Barkoff declined to speak about the incident on the record with the Capitol News Service, and calls to Rosenzweig were not returned.
In the letter to Barkoff the NPPA, WHNPA and RCFP state that “while we commend your office for immediately apologizing . . . we do not believe that such a blatant violation of free press/speech rights protected under the First Amendment should pass without comment.” The letter goes on to cite a May 14, 2012 letter from the Department of Justice to the Baltimore Police Department from a similar case which stated that “Under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed.”
The NPPA, WHNPA and RCFP concluded the letter by commenting that “In order to ensure that situations like this one do not ever happen again . . . we would like to meet with members of your staff to discuss “event” coverage from your perspective and ours.” It is the NPPA’s hope that a meeting with the Vice President’s staff will better inform staff members as to the First Amendment rights of photographers and journalists, and will prevent future incidents such as this from occurring again.
Posted in DOJ, First Amendment, First Amendment rights, National Press Photographers Association, photographers, Photographers' Rights, photojournalism, Reporters Committee for Freedom of the Press, Student, Vice President Press Office, Visual Journalists, White House News Photographers Association, WHNPA | No Comments »
March 12th, 2013 by Joan Blazich and tagged first amendment, Mickey Osterreicher, national press photographers association, New Mexico Department of Homeland Security, NPPA, photographer, photography, photojournalist, Suspicious Activity Report
The National Press Photographer’s Association (NPPA) recently worked with the New Mexico Department of Homeland Security (NMDHS) to revise policies regarding photography in its online Suspicious Activity Reports (SAR). NPPA General Counsel Mickey Osterreicher was initially alerted to the issue when NPPA member Amanda Emily wrote on the NPPA Facebook page on Feb. 19 about the issue: “If you ever visit New Mexico, don’t bother photographing “historic structures and national landmarks” among other subjects….it’s considered a suspicious worthy of reporting to their fusion center.” This is the original version of the NMDHS SAR policy.
Several NPPA members commented on Ms. Emily’s post, including Osterreicher, who on Feb. 20 sent an email to Mr. George Heidke, General Counsel for the NMDHS, about the NMDHS’s SAR forms. In that email Osterreicher recommended that NMDH modify their SAR to remove both the “Activity (photography) checkbox” as well as the “Q & A” answer directing that “You should immediately report people who photograph, videotape, sketch . . .” which immediately preceded that checkbox because both portions on the SAR form indicated that photography in general constituted a suspicious activity. Osterreicher then quoted from a “Report It Form” issued by the Spokane County Sheriff’s Office which describes the appropriate way to address photography in the context of a SAR, and which he also had a part in correcting in 2011:
“These activities are generally First Amendment-protected activities and should not be reported absent articulable facts and circumstances that support the suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism or other crimes, including evidence of pre-operational planning related to terrorism. Race, ethnicity, national origin, or religious affiliation should not be considered as factors that create suspicion (although these factors may be used as specific suspect descriptions).”
In his email, Osterreicher also pointed to a FPS (Federal Protective Service) bulletin which recognizes the First Amendment rights of photographers to take photographs of federal buildings unless such activity gives rise to a reasonable concern of suspicious activity. He then said, “photography by itself is not a suspicious activity and is protected by the First Amendment.” ”Unfortunately the reliance by law enforcement officers to question, detain and interfere with lawful activities by photographers under the guise of preventing terrorist activities has become a daily occurrence, ” he added. ”The abridgement of a constitutionally protected activity because of that erroneous belief is only reinforced by your specific reference to photography as possibly being part of some sinister act.” Osterreicher concluded the email by again urging Mr. Heidke to consider amending the NMDHS SAR form to remove its references to photography.
In a not too surprising coincidence, world-reknowned photojournalist David Burnett also wrote to Robert McGee, Chief Information Officer for NMDHS, stating his concerns over ”the potential for extremely negative backlash which the public might feel, based on the . . . guidelines such as they are outlined on your website.” ”Photography is not a crime,” he went on, adding “those of us who carry cameras on a daily basis have to deal with the increased sense of paranoia, and often ill-conceived reactions by much of the public over something as simple as taking a photograph of a historic landmark building, or a natural wonder. In fact, let’s be honest, the world at large would hardly know of any of the wonders of New Mexico were it not for the photographs which have become iconic in their own way, over the years.”
Burnett pointed out that “photography remains a passion for millions of Americans (and others), and the artistic expression through which we see the world with our cameras is unquestionably one of the great visual joys of our time. I fear that in an attempt to rally public interest in protecting society at large, you may have put at risk something which provides a great deal of joy , and which no doubt through commerce and tourism, add a great deal of benefit to New Mexico,” concluding with a plea to “reconsider the manner in which you seek to engage the public re: ‘suspicious activity’ as we all want to live in a safe environment, but to do so at the cost of being suspected as ‘terrorists’ or ‘criminals’ for merely engaging our right to take photographs, is something which in the end does not properly serve the public at large.” Burnett also shared copied Osterreicher on his email.
NPPA is pleased to report that on March 6, Osterreicher received an email from Mr. Heidke which stated: “The Department has concluded its review of the SAR instructions and has posted new guidelines on its website. We appreciate your comments. Thank you.” “This incident serves as a reminder that everyone must remain vigilant to ensure that these types of postings are corrected to avoid the chilling effect they have on our First Amendment rights,” Osterreicher said. The communications between the two attorneys also show the ability of NPPA to contact and work with law enforcement and other government agencies in a positive, instructive manner to help improve relationships between photographers and those entities. NPPA encourages its members to communicate such issues as the NMDHS’s old SAR policy to Mr. Osterreicher so that the NPPA can continue its mission of advocating as the voice of visual journalists. The new NMDHS link can be found here and the new form here.
Posted in David Burnett, First Amendment, First Amendment rights, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism, SAR, Suspicious Activity | No Comments »
January 26th, 2013 by Joan Blazich and tagged Alicia Calzada, copyright, copyright small claims, journalism, journalist, law, Legal, Mickey Osterreicher, national press photographers association, NPPA, orphan works, photographer, photographers, photography, photojournalism, photojournalist, u.s. copyright office, Visual Journalists
The National Press Photographer’s Association (NPPA) has, in response to a Notice of Inquiry (NOI) by the Copyright Office, submitted comments on the issue of orphan works and mass digitalization. The Copyright Office has solicited comments for use in advising Congress on how to address current issues involving copyright and orphan works.
These official comments, written by NPPA attorneys Mickey Osterreicher and Alicia Calzada, with contributions from board member Greg Smith and NPPA intern Joan Blazich, discuss the issues currently facing visual journalists regarding copyright and propose solutions for creating a system which would treat copyright holders and users of orphaned works fairly and efficiently.
The comments state that “NPPA is gravely concerned that in seeking to address the frustration of ‘good faith users’ of Orphan Works in order to cure their potential liability and ‘gridlock in the digital marketplace,’ the Copyright Office may create a far more serious problem for authors/owners of visual works.” The comments also note that “As visual journalists, our members are squeezed from every side by onerous contracts seeking all rights for little compensation, the proliferation of user generated content by publishers and the widespread infringement of visual works by individuals and organizations. While we understand and appreciate the concerns of those in the copyright community who need to use Orphan Works, we believe it is crucial to protect the copyright of recently created visual works that, for whatever reason, appear to be orphaned when, in fact, they are not.”
NPPA attorneys Osterreicher and Calzada plan to attend the Copyright Office’s public hearings on orphan works once dates and times for those hearings are announced. As more visual journalists face situations in which their images are misappropriated under an ”orphan works” claim, the NPPA proposes that if any legislation is enacted, it must include language that protects authors from predatory practices by those who would infringe upon our members’ work with impunity under the protection of a new law.
“Photographers are lucky to have advocates like Mickey, Alicia, Greg and Joan, who spend a great deal of time examining these issues and and how they will affect our members and all those who create content,” said NPPA President Mike Borland. “The orphan works issue won’t be resolved soon and it certainly won’t be resolved properly without our voice being heard,” he added.
In accordance with that goal, the comments recommend significant limitations on what works qualify as orphans and which users would be entitled to such protection. In addition, the NPPA advocated for registration of any uses of orphan works, along with a bond or insurance requirement to protect rights holders’ financial interests in the event they come forward to make a claim.
To read the NPPA’s comments, click here. To read the Copyright Office’s current NOI, click here. To read about previous Copyright Office inquiries on the subject of orphan works click here.
Posted in copyright, copyright infringement, National Press Photographers Association, NPPA, Orphan Works, Photographers' Rights, U.S. Copyright Office, Visual Journalists | 2 Comments »
January 24th, 2013 by Mickey Osterreicher and tagged copyright infringement, Herman Cain, Simon & Schuster
A federal judge in the Northern District of Georgia has denied a motion to dismiss in a copyright infringtement lawsuit by an ad agency against former Republican presidential candidate Herman Cain and publisher Simon & Schuster Inc. The amended complaint, filed in June 2012, claims that a photo, shot on behalf of Friends of Herman Cain, Inc. for use in his political campaign was published on the cover of Mr. Cain’s autobiography without permission.
The book “This is Herman Cain!: My Journey to the White House,” was published in October 2011, during Cain’s presidential campaign for the Republican nomination. Adventure Advertising, LLC filed suit in January, 2012.
As in many copyright infringement lawsuits the parties disagree over whether the user of the photo had asked for and received permission to publish it and whether such use was licensed by the rights holder.
The judge’s ruling will allow discovery to move forward.
Posted in copyright, copyright infringement, Photographers' Rights | 4 Comments »
January 16th, 2013 by Mickey Osterreicher and tagged AFP, Agence France-Presse, Copyright Act, copyright infringement, Daniel Morel, DMCA, Getty, twitpic, twitter, Washington Post
New York District Judge Alison J. Nathan has ruled (AFP-Morel Decision 01-14-13) that news service Agence France Presse (AFP) and The Washington Post Co (the Post) infringed upon photojournalist Daniel Morel’s copyright by their unauthorized use of his photos of the 2010 Haiti earthquake aftermath.
Mr. Morel had uploaded the photos in question to TwitPic.com by linking them to his Twitter account because the country-wide devastation to electricity and Internet connections forced him to use this more public method. Further complicating the matter, shortly after Morel posted his pictures online they were reposted to the Twitter account of Lisandro Suero, who tweeted that he had exclusive photographs of the earthquakes. A number of agencies including AFP then credited Suero for the photos.
In the original Complaint, filed in 2010 AFP sought a declaratory judgment that it had not infringed upon Morel’s copyrights and included defamation claims against him as well. Morel then counter-claimed that AFP, the Post, Getty and other news organizations had distributed his images without his permission.
In its answer AFP argued that it was a third-party beneficiary of the license agreement between Morel and Twitter, by claiming that Twitter’s Terms of Service (TOS) granted it a license as one of Twitter’s “other users.”
“Based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case,” the Court noted in finding that “The Twitter [terms of service] provide that users retain their rights to the content they post — with the exception of the license granted to Twitter and its partners — rebutting AFP’s claim that Twitter intended to confer a license on it to sell Morel’s photographs.”
In making its ruling the court observed that “the dispute between the parties with regard to liability for direct infringement turns on Counterclaim Defendants’ affirmative defenses, namely their claims that (1) by posting the Photos-at-Issue on TwitPic/Twitter, Morel granted them a license, (2) Getty is entitled to the benefit of a DMCA safe-harbor, and (3) Getty has not engaged in volitional conduct sufficient to impose liability.”
In an ironic twist this recent decision comes two years to the date after District Judge William H. Pauley III issued his Decision denying AFP’s motion to dismiss Morel’s counter-claim suit. In that earlier proceeding Judge Pauley also concluded that the express language of the Twitter and TwitPic TOS did not provide an express license that protected AFP.
In her well-reasoned 58 page decision Judge Nathan granted Morel partial summary judgment ruling that “AFP and the Post are liable for copyright infringement as to the Photos-at-Issue.” But the court rejected his “arguments regarding the scope of statutory damages available under the Copyright Act and DMCA.” The judge also denied motions for summary judgment with regard to whether the infringements were willful; as well as the “claims for contributory and vicarious copyright liability.”
Because there remain genuine issues of fact the Court denied Mr. Morel’s claim for summary judgment regarding DMCA violations and also limited his recovery under that Act should he prevail at trial. After careful analysis the Court also concluded “that any awards of statutory damages against AFP or Getty may not be multiplied based on the number of infringers with whom AFP or Getty is jointly and severally liable. Rather, AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.”
Judge Nathan further rebuked AFP by stating “in making its arguments on summary judgment AFP wholly ignores those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that ‘you retain your rights to any Content you submit, post or display’ and ‘what’s yours is yours – you own your content.’”
This case serves as a cautionary tale about just how important it is to read and understand any TOS before clicking “agree.” These were the Twitpic TOS at the time that Morel uploaded his images: “by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.” You should also read the current TOS which have been substantially modified, due in large part to this case.
Morel settled with counter-claim defendants ABC, CNN and CBS in 2011. A conference is set for February 1, 2013, at 4:00 pm to discuss further scheduling of this matter.
Update: Morel’s attorneys have released a press release, stating in part that “Although Judge Nathan rejected Morel’s legal theory entitling him to as much as one hundred twenty million dollars in statutory damages, Morel still hopes to win millions in damages following trial.”
Posted in copyright, copyright infringement, photographers, Photographers' Rights, Twitpic, Twitter | 5 Comments »