NPPA Files Comments with FAA Expressing Concerns over Drone Registration

November 18th, 2015 by Mickey Osterreicher and tagged , , , , , , ,

On November 17, 2015 the National Press Photographers Association (“NPPA”), joined by 10 other organizations submitted supplemental comments to the FAA regarding the unintended consequences of drone registration. The groups are concerned that a registration process requiring all drone operators to carry a certificate of registration with them, and produce it on demand to a federal, state or local police official, will be used by police and prosecutors in a pretextual way to chill free speech and freedom of the press. Journalists often encounter this type of interference. Police officers who do not like news coverage of an event often use vague charges like failing to obey a lawful order or interference with officers at an emergency scene to stop journalists.

The stated purpose of a registration and marking requirement is the safe integration of drones into the national airspace. The FAA has asserted one of the ways to insure that is to have a means to identify and track the drone to its operator. The groups believe that requiring a drone operator to produce papers on demand will not aid in drone safety.

Writing for the group, NPPA general counsel Mickey H. Osterreicher, expressed the concern “with these unanticipated and unintended consequences which illustrate how government, and particularly law enforcement, can use discretionary laws to suppress speech activities in ways that were not considered at the time of their enactment. To pass constitutional muster and forestall constitutional conflicts between journalists and law enforcement officers, any registration system, must contain provisions that preclude officers from demanding to see journalists’ registration papers, and to then detaining, fining, or seizing property from journalists who are not carrying such documentation with them.”

The American Society of Media Photographers, American Society of News Editors, Associated Press Media Editors, Associated Press Photo Managers, The McClatchy Company, North Jersey Media Group, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Society of Professional Journalists and the Student Press Law Center joined in the filing.



Posted in drone, Drones, FAA, First Amendment, First Amendment rights, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Regulations limiting photography, Unmanned Aerial Vehicle (UAV) | No Comments »

Judge Halts Enforcement of Unconstitutional Nude Photo Law in Arizona

July 10th, 2015 by Mickey Osterreicher and tagged , , , , , , , , , , ,

PHOENIX – A federal court today permanently ordered Arizona state prosecutors to halt enforcement of a 2014 law restricting the display of nude images.

The order approved a joint final settlement between the Arizona attorney general and the coalition of plaintiffs which include the National Press Photographers Association (NPPA), Arizona booksellers, book and newspaper publishers, and librarians, who filed a federal lawsuit challenging the law.

The order resolves all claims in the lawsuit, Antigone Books v. Brnovich, and states that plaintiffs are entitled to attorney’s fees.

“We are very pleased with the outcome of this case and our representation by our attorneys in this matter,” said Charles W. L. (“Chip”) Deale, NPPA Executive Director.

“This is a complete victory for publishers, booksellers, librarians, photographers, and others against an unconstitutional law,” said Media Coalition Executive Director David Horowitz, whose members include plaintiffs in the suit. “Now they won’t have to worry about being charged with a felony for offering newsworthy and artistic images.”

The law, Arizona Revised Statute 13-1425, was initially passed with the stated intent of combating “revenge porn,” a term popularly understood to describe a person’s malicious posting of an identifiable, private image online with the intent and effect of harming an ex-lover. But, as plaintiffs maintained in the lawsuit, the law wasn’t limited to revenge and criminalized far more than offensive acts. It could have led to the conviction of someone posting a nude photo with no intent to harm the person depicted. This would include, for example, an artistic photographer who creates an anthology of his images of nudes — as well as the book’s publisher, seller, or librarian.

As part of the lawsuit, NPPA General Counsel Mickey H. Osterreicher expressed fears in his declaration “that the NPPA’s members (including me) are at risk of prosecution under the Act simply for doing our job—the accurate and comprehensive reporting of the news. The Act would subject the NPPA’s members to prosecution for taking newsworthy, non-obscene photographs and videos, and either offering those photographs and videos for publication, or themselves publishing the photographs and videos through electronic or other media.” “With this very comprehensive settlement, that concern has now been alleviated,” said NPPA President Mark Dolan.

Likewise, a person who shared a photograph could have been charged with a felony even if the person depicted had no expectation that the image would be kept private and suffered no harm, such as a photojournalist who posted images of victims of war or natural disaster. As a result, the law applied to any person displaying an image of nudity, no matter how newsworthy, artistic, educational, or historic.

“This is an important vindication of the First Amendment and a great resolution for our clients,” said ACLU Staff Attorney Lee Rowland, who, along with lawyers from the ACLU of Arizona and Dentons US LLP, represents the plaintiffs. “We commend the state for agreeing not to enforce a broad statute that chilled and criminalized speech unquestionably protected by the Constitution.”

Dan Pochoda, attorney for the ACLU of Arizona, added: “We always believed that it would be a waste of the Arizona taxpayers’ money to continue defending this unconstitutional statute. We’re pleased that the court’s order means this law will not be enforced, all without additional and unnecessary litigation.” Today’s order is at:

The plaintiffs were: Antigone Books L.L.C.; Intergalactic, Inc., D/B/A, Bookmans; Changing Hands Bookstore, Inc.; Copper News Book Store; Mostly Books; Voicemedia Group, Inc.; American Booksellers Foundation For Free Expression; Association Of American Publishers; Freedom To Read Foundation; and the National Press Photographers Association (NPPA).

Posted in Access, ACLU, First Amendment, First Amendment rights, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism | 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 »

New Copyright Compendium bans works produced by “nature, animals, and plants” and implicitly uses monkey selfie as example

September 3rd, 2014 by Tyler Wilson and tagged , , , , , , ,

In the recently released U.S. Copyright Compendium, which lays out regulations about the registration process for copyrights, one sentence stood out from the rest of the 1200-page document, and is as follows: “The Office will not register works produced by nature, animals, or plants, which includes a photograph taken by a monkey.” It stood out because three years ago, David Slater, a British photographer, traveled to Indonesia to photograph monkeys. While there, he had his camera snatched by a monkey and the monkey ended up taking some amazing photographs with his camera. Slater published these photos, and later discovered that one of them was published on Wikipedia without his permission. Slater wanted the photo taken down, and while Wikipedia at first complied, another editor later revisted the decision and reposted the image, because the editor took the position that the photo was taken by the monkey and not Slater, thus making it public domain. A lively debate over whether Slater owned the copyright ensued. Slater maintains that he owns the copyright, noting that “there are many wildlife photographers that regularly employ animals to push the shutter button.  Pressure pads, trip wires, beam splitters – all devices attached to a camera that allows an animal to ‘take’ a photograph. In my case it was an attached cable release.”

For an interesting analysis of the Compendium and the monkey selfie see: “Return to the Snapshots of the Apes,” by Terry Hart. Also see: “Wikimedia Says When a Monkey Takes a Selfie, No One Owns It,” by Louise Stewart. For a tongue-in-cheek read on what the monkey had to say see:  “A Statement Statement From the Monkey,” by Bill Barol.

It is important to remember that the policy set forth in the U.S. Copyright Compendium is not binding upon the U.S. Copyright Office or the Register of Copyrights. It is only “the administrative manual of the Register of Copyrights concerning Title 17 of the United States Code and Chapter 37 of the Code of Federal Regulations, and provides instruction to agency staff regarding their statutory duties and expert guidance to copyright applicants, practitioners, scholars, the courts, and members of the general public regarding institutional practices and related principles of law.”

While the Compendium is not law, it certainly does influence law making in the realm of copyrights. Therefore, concerned photographers should comment on the Compendium, through the federal register. According to the Copyright Office the Compendium “will remain in draft form for 120 days [from August 19, 2014] pending final review and implementation, taking effect on or around December 15, 2014.” The public may submit comments to the Copyright Office regarding the Compendium up until that date.

Editor’s note: This article has been edited to clarify that Wikipedia initially complied with the takedown request, and later changed its mind, and to include a quote from David Slater.

Posted in Cameras, copyright, copyright infringement, multimedia, photographers, photojournalism, U.S. Copyright Office | 2 Comments »

Photo Scam – Photographers Beware

August 29th, 2014 by Tyler Wilson and tagged , , , , ,

NPPA has been notified of an attempt to scam a photographer by soliciting work and then sending an “accidental” upfront deposit payment for more than the amount quoted using a fake check, and then following up with a request for the return of the overpayment from the photographer.  Fortunately the astute photographer was warned by his bank that the check was a fake and was able to avoid losing any money. NPPA reminds its members to be wary of these unsolicited offers of work, especially ones that are from unknown clients. Never agree to return money to an unknown person who claims to have overpaid you for a deposit.  Check with your bank to verify the validity of checks before making any deposits as such action could cause your financial institution to cancel your accounts in addition to costing you bank fees.


Posted in business, National Press Photographers Association, NPPA, Scam | No Comments »

Texas Court Upholds the Right to Photograph and Record Police Activity

July 26th, 2014 by Alicia Calzada and tagged , , , , , , , , , , ,

In an important ruling in Texas, a federal judge held that the right to record police activity is a clearly established right protected by the First Amendment.

In a civil rights lawsuit, Antonio Buehler alleged that his constitutional rights were violated when he was arrested by the Austin Police Department multiple times for taking pictures of police activities. Buehler was first arrested when he came upon a police scene at a gas station, where he began recording the arrest because he felt that excessive force was being used. After that arrest, he formed a group called the “Peaceful Streets Project” and began regularly documenting police activity. He was arrested again and again for documenting police activity, according to the lawsuit.

In an effort to get the lawsuit dismissed, the Austin Police Department claimed “qualified immunity” which protects state officials from suit. However, qualified immunity is not available if officials violate a clearly established constitutional right. In their argument, APD claimed that the right to photograph or videotape police officers “is not recognized as a constitutional right”.

In an order released Thursday, the federal judge in the case held that not only is there a constitutional right to document police officers, but that the right is clearly established. Magistrate Judge Mark Lane held that “the First Amendment protects the right to videotape police officers in the performance of their official duties, subject to reasonable time, place and manner restrictions.”

Continuing, the judge wrote:

If a person has the right to assemble in a public place, receive information on a matter of public concern, and make a record of that information for the purpose of disseminating that information, the ability to make photographic or video recording of that information is simply not a new or a revolutionary expansion of a historical right. Instead the photographic or video recording of public information is only a more modern and efficient method of exercising a clearly established right.

Buehler’s attorney, Daphne Silverman told NPPA, “Antonio and I are pleased with Judge Lane’s ruling upholding the First Amendment right to document police conduct. This is a win for the citizens and should be of no concern to honest police officers.”

The NPPA filed an amicus brief in the case last month in support of Buehler’s position, whose case will now go forward.

See also,

Posted in Austin Police, blogging, False Arrest, Federal Court, First Amendment, First Amendment rights, Lawsuit, Legal, National Press Photographers Association, NPPA, Photographers' Rights, photojournalism, Police, Recording Police | No Comments »

NPPA, Other Media Groups Submit Comments to FAA in Support of Exemptions for Use of sUAS

July 16th, 2014 by Mickey Osterreicher and tagged , , , , , , , , , , , , , , ,

Today the NPPA filed comments with the FAA in support of petitions from a number of aerial photo and video production companies seeking exemptions to commercially operate small unmanned aerial systems (sUAS – 55lbs or less) for motion picture and television industry use. The NPPA also joined in the analysis submitted as part of the News Media Coalition’s Comments in Support of Video-Production Companies’ Petitions to the FAA for Section 333 Exemption. That Media Coalition includes: Advance Publications, Inc.; A.H. Belo Corp.; The Associated Press; Gannett Co., Inc.; Getty Images (US), Inc.; Gray Television, Inc.; NBCUniversal, Inc.; The New York Times Company; Scripps Media, Inc.; Sinclair Broadcast Group, Inc.; and WP Company LLC (d/b/a The Washington Post), represented by Charles D. Tobin and Christie N. Waltz of the Washington, DC law firm Holland & Knight, LLP. The additional comments by NPPA were submitted to reflect the specific concerns of our members and were drafted by NPPA General Counsel Mickey H. Osterreicher and Advocacy Chair Alicia Wagner Calzada, who is also an  attorney with Haynes and Boone, LLP.

As noted, the NPPA has an acute interest in helping the FAA properly expedite the integration of sUAS into the National Airspace System (“NAS”).  We also support exemptions by the FAA that would permit journalists, and in particular visual journalists, to use sUAS for newsgathering purposes. The NPPA reviewed the voluntary and self-imposed “limitations and conditions” proposed in the production companies’ petitions. And while they may be acceptable to those groups, we urged the FAA to decline to adopt or extend them as prerequisites for future exemptions or as future standards in its rulemaking. The NPPA acknowledged that some of those limitations and conditions might be acceptable, but expressed our concerns about others that we deemed to be impractical and which would impose an undue burden on sUAS use for newsgathering.

The NPPA continues to assert that sUAS use for newsgathering is not a “commercial use” and we expect to see tangible benefits if the current exemption requests are granted. Specifically, we would hope that NPPA will also be allowed to “facilitate” exemption petitions on behalf our membership in a similar manner to what has been achieved by the Motion Picture Association of America.

The NPPA also referenced in its comments and filed a copy of our paper written in support of sUAS for use in newsgathering, which also included results from a study we conducted on that subject.


Posted in drone, Drones, FAA, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, rulemaking, small unmanned aerial systems, sUAS | No Comments »

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