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Photographer Ordered to Pay $266,000 to L.A. Times in Lawsuit

November 20th, 2012 by

Photographer David Strick, who sued the Los Angeles Times last year claiming infringement of his photographs, has been ordered by an arbitrator to pay the L.A. Times more than $266,000.
Strick had entered into a contract with the L.A. Times in 2007 to provide photographs to the newspaper. The L.A. Times declined to renew Strick’s contract in 2010, but continued to use some of Strick’s photographs. Strick alleged in his complaint that his agreement with the L.A. Times contained a “specifically negotiated” acknowledgement that “For the avoidance of doubt, LATIMES.COM acknowledges that the copyrights to the Photographs are owned by Strick.” To read Strick’s complaint, click here: http://www.scribd.com/doc/62136598/Strick-Suit-Part-1.

After the L.A. Times continued to use Strick’s photographers after declining to renew their contract with him, Strick challenged the newspaper’s use of the photographs, alleging that the use of these images was infringement. Despite a clause in the original Service Agreement calling for “quick and efficient” resolution to any disputes between the parties, Strick refused to engage in arbitration with the L.A. Times and instead filed in U.S. District Court. To read about Strick’s initial lawsuit, click here: http://www.thewrap.com/media/column-post/la-times-tries-force-arbitration-david-strick-copyright-suit-30043?page=0,0.

The arbitrator held in his decision that Strick’s refusal to abide by the Service Agreement, coupled with Strick’s “poor behavior” throughout the arbitration process, justified the dismissal of Strick’s case and the awarding of attorneys’ fees and court costs to the L.A. Times. The arbitrator, retired Judge Lichtman, noted in his opinion that “For reasons which remain inexplicable, claimant (Strick) chose to abandon and distance himself from the controlling licensing agreement as well as the agreed upon dispute resolution mechanisms contained therein.” The result is that while Strick arguably had valid infringement claims against the L.A. Times for violating the copyright provisions of their contract, Strick lost his case simply because he failed to abide by arbitration provisions that he had agreed to in signing the contract with the L.A. Times. To read more of Arbitrator Lichtman’s comments, click here: http://www.thewrap.com/media/column-post/la-times-wins-266k-photographer-david-strick-64816?page=0,0.

According to Photo District News, Strick issued a statement in wake of the arbitrator’s decision, stating that he was “devasted by today’s ruling,” Strick went on to say that this decision was “a technical ruling that allows a willful infringement to take place but bars me from redressing that infringement.” Strick has since announced that he will appeal the arbitrator’s decision. To read more on Strick’s reaction to this decision, click here: http://www.pdnonline.com/news/Photog-Claiming-LA-T-6067.shtml.

In copyright infringement claims, the terms of a contract between the involved parties can quickly determine whether a claim for infringement will be deemed meritless or not. A photographer must be careful to not only review what the terms of copyright for his or her works may be, but also to note any provisions in the contract requiring arbitration. As a contract, once signed, is a binding agreement upon both parties, a photographer who signs a contract and then refuses to follow its provisions could easily end up with problems.

For claims which arise from a party not following a binding provision of a contract, both copyright law and contract provisions can allow a court or arbitrator to award attorneys’ fees and court costs to the prevailing party. This awarding of fees and costs is granted to compensate the prevailing party for the expenses it occurred in defending itself against the claim. As copyright infringement claims can be quite costly to file and pursue, the awarding of fees and costs can be very high.

Photographers should be aware of the terms in their contracts with other parties, and proceed cautiously when entering into such agreements. Choosing to not follow the provisions of a contract regarding how disputes will be handled can result in a significant award of attorneys’ fees and court costs against the losing party. Even if a photographer feels he or she has a strong claim for infringement despite the contract, provisions in that contract for arbitration may remain binding. In general, photographers should always read contractual agreements carefully, making sure to have any ambiguous language clarified. In the event that a photographer does wish to pursue an infringement claim and such a claim seems to be permitted under the contract, the photographer should be prepared to follow any provisions the contract may set out regarding arbitration or litigation. Although Strick’s situation is regrettable, it serves as a cautionary tale. To read more about Strick’s case, click here: http://www.thewrap.com/media/column-post/la-times-wins-266k-photographer-david-strick-64816?page=0,0.

Posted in contracts, copyright, Copyright Small Claims, Lawsuit, Legal, Licensing, Photographers' Rights | No Comments »

NPPA Joins Lawsuit Against NYPD

October 22nd, 2012 by and tagged , , , , , , , , , , , , , ,

Today the National Press Photographer’s Association (NPPA) announced that it was joining 5 elected officials and almost a dozen members of the press in a lawsuit against the New York Police Department (NYPD) and JP Morgan Chase. The lawsuit alleges that the City of New York, the MTA, the NYPD, Brookfield Properties, and JP Morgan Chase conspired to violate the First Amendment rights of press members who were arrested while covering the “Occupy Wall Street” protests. The amended complaint seeks both redress against police misconduct during these arrests and that a federal independent monitor be appointed to observe future NYPD incidents involving the press.

NPPA joins this lawsuit on behalf of its 7000 members, including Plaintiff Stephanie Keith. Recently awarded the Newswoman of the Year Award by the Newswoman’s Club of New York, Ms. Keith was arrested twice while covering the Occupy Wall Street protests. “I joined this lawsuit because as a working journalist I’ve been arrested, thrown to the ground, hit with batons and yelled at by the NYPD while doing my job on assignment” said Ms. Keith. “I have seen my fellow journalists being treated this way as well. Why should journalists be subjected to trauma inducing harassment on the job?”

Sean D. Elliot, President of NPPA, stated that NPPA joined the lawsuit so that “it can effectively address the continuing course of conduct by the NYPD against its members and others that has chilled our Constitutionally protected rights to gather and disseminate news.”

Other plaintiffs in this lawsuit were quick to praise NPPA for joining as a new party. “We are pleased and honored to have the NPPA join our efforts, and we look forward to working with them towards the goals of justice, accountability and freedom of expression,” said Sam Cohen, one of the attorneys at the helm of the case. Yetta Kurland, a civil rights attorney assisting with the case, remarked that “The NPPA and other members of the press play a vital role in getting the message of OWS out to the world. Arresting the press isn’t just an attempt by the City and JP Morgan Chase to suppress the press and freedom of speech and expression, but also to suppress the message of Occupy.”

Posted in Assault on Photographers, Attack Photographers, Commissioner Raymond Kelly, First Amendment, First Amendment rights, Lawsuit, National Press Photographers Association, News Photography, Newsgathering, NPPA, NYPD, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Recording Police | No Comments »

Lawsuit Targets San Diego Law Enforcement Agencies for First Amendment Rights Violations

August 10th, 2012 by Advocacy Intern and tagged , , , , , , , , , , , , , ,

The American News and Information Services (ANIS) filed a Complaint Wednesday in federal district court seeking redress for the repeated violation of the First Amendment rights of an ANIS employee by San Diego City and County government officials.

The complaint alleges that San Diego law enforcement exhibited a pattern of First Amendment rights violations by giving law enforcement officers excessive discretion to prevent access to and recording of public safety activity.  It also alleges that the pattern is further evidenced by the San Diego Police Department’s (SDPD) exclusive authority to issue media credentials and the retaliatory actions taken against those who attempt to exercise their right to record.

“The SD Defendants, despite a revolution in access to news brought on by rapid technological advances, still seek through the use of government-issued press credentials control of the message through control of the messenger,” the complaint states.

James C. Playford, a National Press Photographers Association (NPPA) member who began work for ANIS after the SDPD refused to renew his press credentials, has been arrested four times since 2010 while attempting to cover public safety activities.  Three of those arrests resulted in the seizure of Playford’s equipment and raw video.  A photo and physical description of Playford was also allegedly disseminated to San Diego law enforcement identifying him as an individual prohibited from access to public safety activity.

San Diego law enforcement agencies have come under fire recently due to repeated arrests of photojournalists.  The NPPA sent a letter  to the SDPD and along with one from the American Civil Liberties Union of San Diego and Imperial County (ACLU) which they referenced on their website, requesting an end to police interference with photojournalists’ rights to record events occurring in public.  Wednesday’s letter was NPPA’s third letter to San Diego law enforcement this year concerning the rights of photojournalists.

“While the press may not have any greater access rights than the public to these incidents, they have no less rights either,” said Mickey H. Osterreicher, general counsel for NPPA, in his letter to the SDPD.  “Unfortunately a number of your officers have abused their discretion in limiting those press rights and then have detained and arrested our members when questioned about such discriminatory acts.”

In the most recent media controversy, NPPA member and freelance photojournalist Edward Baier was arrested on July 20th by the SDPD and charged with interfering with a police officer, though Baier claimed he was attempting to film from private property with the owner’s permission.  Baier said he was tackled by two officers during the altercation, causing him injuries requiring medical attention.

Baier’s arrest was his second this year by the SDPD.  In January, police told Baier to move away from the scene of a drowning, though the public was allowed to remain inside of the police tape.  When Baier protested, he was arrested and charged with resisting arrest.  The arresting officers later added two counts of assaulting an officer.

The NPPA sent a letter to the SDPD in January objecting to Baier’s arrest, and later sent a letter to the Office of the City Attorney requesting that Baier’s charges be dropped.

“The reliance by your officer to question, detain, interfere with, arrest and seize the property of someone engaged in a lawful activity under color of law is reprehensible,” Osterreicher said in his January letter to the SDPD.  “At best, behavior that chills free speech and unreasonably seizes property is extremely unprofessional, at worst it is criminal.”

Posted in Access, ACLU, ACLU of Dan Diego & Imperial County, Assault on Photographers, Attack Photographers, confiscated, First Amendment, First Amendment rights, Lawsuit, National Press Photographers Association, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Recording Police, San Diego Police Department, SDPD | No Comments »

Photo Websites and Misappropriation of Likeness

July 23rd, 2012 by Alicia Calzada

One question that I have long felt to be open is whether or not a news photographer, whose business is taking pictures of people, could be liable for misappropriation of likeness for using someone’s image without consent on a website designed primarily to sell that photographer’s services, or the images themselves.

First, let me explain a little bit about “misappropriation of likeness,” also referred to as the “right of publicity.” This is one of the privacy torts. Basically, every person has the right to control the commercial use of their “likeness,” that is, the picture of themselves – that is why Michael Jordan was paid to endorse Nike. Commercial use can mean use in trade, or use in a way that proposes a transaction. A photographer’s website, when it exists solely to promote that photographer’s professional services and licensing, is a website promoting a product and service.

There is a First Amendment exception to the right against misappropriation, so of course, the subjects of your photographs have no right to control your use of those images in a First Amendment use, such as in a newspaper, book, documentary movie, or news website.

This photo of well-known author Sandra Cisneros can be used without her permission for an article about her or her books. However, it couldn’t be used without permission for an advertisement to sell shawls, her signature accessory. (Photo by Alicia Wagner Calzada)

But that all changes when the same photo is used for commercial purposes, to sell a product or service. If I were using a photo of Shirley Jones to market my business selling psychedelic school buses, I would need her consent. Knowing this, the question arises, if I use a photo of Shirley Jones walking the red carpet, to market my photos of Shirley Jones,  do I need her consent?

A court in California said no, at least not in the circumstances of one case, and last week an appeals court agreed. Jones sued Corbis for violating her right of publicity because they displayed her name and image without her consent on their website as sample images of what could be licensed. The display of the images of Jones was for the purpose of selling a product (the product is a license for the photo of Shirley Jones). All of the photos in question were taken at a red carpet event.

In California, a person can consent to the use of their name or likeness in writing, but the consent can also be implied. The trial court ruled that Jones consented to the taking of the photos, knew that such photos were widely distributed, and in fact, in “at least one of the events at which the pictures were taken, a notice was posted at the entrance of the red carpet. The notice stated that by entering the premises, [Jones] consented to being photographed, and her name, voice and likeness being exploited by any and all means in connection with the event without limitation.” Jones v. Corbis Corp., 815 F. Supp. 2d 1108, 1114 (C.D. Cal. 2011) aff’d, 11-56082, 2012 WL 2884790 (9th Cir. July 16, 2012).

The court held that “It is undisputed that [Jones] voluntarily posed for photographers, who she knew would display her images to prospective buyers, for over 40 years without objection. It was well understood in the entertainment industry that potential customers would not purchase images they could not see before the purchase.” Id.

Furthermore, Shirley Jones “knew and understood that photographers on the red carpet could employ third parties to assist them in distributing her photos.” Id.

Of course, this does not mean that Jones’ publicity rights do not exist in regards to the advertising and marketing of other products. The court specifically noted that it’s ruling was limited to holding that the singer/actress consented to the display of her likeness “for the purpose of distributing the images themselves.”

What does this mean for photographers who want to use images of people on their websites? Well, it doesn’t answer all questions, but when a celebrity or other person consents to their photo being taken, they might also be consenting to the use of their image for the purposes of selling the license to that photo. To me this means, if the photos on your website are available to be licensed, and the person in the photo consented to the taking of the photo, you are that much closer to winning on this issue. For this reason, it might be useful to clarify that all of the images on your website are available to be licensed.

Importantly this case involved an interpretation of California law, and did not address the issue of photos taken without the consent of the subject, or photos that promote a photography business but aren’t available for license. But it is still useful information when making decisions on using photographs.

Posted in copyright, First Amendment, Lawsuit, Licensing, Misappropriation of Likeness, Newsgathering, Paparazzi, photographers, Photographers' Rights, photojournalism | 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 »

Rescheduled: Press Conference on Major Legal Action Concerning Suffolk County Police Department

April 9th, 2012 by Mickey Osterreicher

UPDATE – April 10, 2012 ************

Due to the emergency situation in Suffolk County caused by wild fires we have decided to reschedule the filing of the lawsuit and press conference against the County. Our thoughts and prayers go out to all the brave men and women who are working tirelessly fighting this fire.

Unless the emergency situation continues, the press conference is now scheduled for Wednesday, April 11, 2012. We will confirm and update as to time and location as soon as we have more information on the fire.

Thank you for your patience and understanding.

—————————————————-

 April 9, 2012 — Tomorrow at 9:45 a.m. in Central Islip, the New York Civil Liberties Union, the law firm of Davis Wright Tremaine, LLP, and the National Press Photographers Association will hold a media availability to announce a legal action regarding Suffolk County’s policy and practice of obstructing the First Amendment right of the press and the public to record and gather the news about police activity in public places.

The legal action concerns a July 2011 incident in which professional video journalist Philip Datz was unlawfully arrested and detained by Suffolk County police while filming police activity on a public street in Bohemia, NY.

Mr. Datz, Attorney Robert Balin, a partner with Davis Wright Tremaine, and NYCLU Suffolk County Chapter Director Amol Sinha will be available for interviews tomorrow starting at 9:45 a.m. at the NYCLU Suffolk County Chapter’s office, which is located at Touro Law Public Advocacy center, 225 Eastview Drive in Central Islip. Mickey Osterreicher, NPPA General Counsel will be available by telephone 716.983.7800.

 

Posted in Access, confiscated, Davis Wright Tremaine, False Arrest, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, Lawsuit, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, NYCLU, photographers, Photographers' Rights, photojournalism, Police, Recording Police, Robert Balin, Sgt. Michael Milton | No Comments »

Florida Prosecutor Drops Charges Against NPPA Member; Lawsuit Filed

March 30th, 2012 by Mickey Osterreicher

In January of this year Stephen Horrigan, an NPPA member was charged with felony eavesdropping and misdemeanor obstruction for using his cellphone to record a traffic stop by police officers in North Port, Florida. Horrigan came out of his nearby home to see what was going on and determine the newsworthiness of the situation. For doing nothing more than that, as he stood with other members of the public, he ended up spending a night in jail while facing a five year prison term if convicted on the eavesdropping charge. Adding insult to injury the police seized his phone as “evidence” and held it until recently.

On January 30. 2012 NPPA sent a letter to North Port Police Chief Kevin Vespia, strongly objecting to “the treatment and arrest of NPPA member and freelance photojournalist Stephen P. Horrigan.” The letter went on to state “in addition to the arrest, the fact that Mr. Horrigan’s camera was unlawfully seized is also extremely troubling. We believe that his video of the incident will show that officers acted in an arbitrary, capricious and unprofessional manner and appeared to have no concept of the First and Fourth Amendment rights granted under the United States Constitutions as well as similar protections provided by Florida law.” The letter concluded with the request “that the charges against Mr. Horrigan be immediately dropped; that his equipment and any recordings made by him be immediately returned; and that this incident be fully investigated. We further request that your department immediately issue orders directing officers to cease such activity and also that your department implement revised training for all officers regarding these matters.”

This case was covered extensively in the press by Billy Cox of the Sarasota Herald-Tribune and Carlos Miller of Photography is Not a Crime. As a justification for trampling on the rights of a citizen they produced a Probable Cause Affidavit and also referred to “a legal guideline that our officers have read and discussed during roll call. The issue here is not the video portion but the audio portion. This is the current guideline we use for cases like these. The guideline was issued by the legal counsel of the Palm Beach County Sheriff’s Office and permission was granted for distribution,” according to North Port Police Captain Robert Estrada, in an email.

After reviewing that “January 2010 North Port Police Bulletin #10-12” along with a Law Enforcement News Letter the NPPA sent a scathing email back to Captain Estrada and Chief Vespia citing cases and correcting the misinformation provided in the bulletin concerning the circumstances under which there may and may not be a “reasonable expectation of privacy.” Although there had been some positive dialogue between NPPA and the North Port Police there was no response to the email or even acknowledgement that it had been received.

In February an attorney from the Florida ACLU, Andrea Mogensen agreed to represent Mr. Horrigan, who as of March 11, 2012 had still not heard from the State Attorney’s Office (SAO) as to whether they planned to move forward on the original charges. On March 13, 2012 the Herald-Tribune printed a column by Eric Ernst supporting Horrigan’s’ position. Shortly thereafter Horrigan filed (on his own) a Motion for Hearing: A Plea for Relief from Prior Restraint seeking the return of his smartphone, battery and memory card, and alleging, among other things that the seizure of those items violated the First Amendment to the U.S. Constitution and Article I, Section 4 of the State of Florida Constitution as being a form of prior restraint on his ability to publish that material. He also asserted that as the operator of “a web-site news-gathering ‘blog’ and dues paying member of the National Press Photographers Association” he may not have any greater rights under the First Amendment than the public but that he enjoyed no less right because of it.

A week later a detective came to his house at 7am to tell him that he could pick-up his phone at the evidence room. In utter surprise he found that the video had not been deleted, although he believes that it had been viewed or copied. He posted it on YouTube for everyone to see. So far it has over 4,200 hits. The Herald- Tribune posted an editorial urging police, prosecutors and legislators to improve their guidelines, training and practices and also revise the eavesdropping statute.

Yesterday the SAO declined to prosecute and dropped the charges, noting in a memo that the people could not meet their burden of proof beyond a reasonable doubt and also questioned whether the officer had an expectation of privacy in this instance. As for the “resisting, obstructing, or opposing an officer without violence charge,” State’s Attorney Eric Werbeck concluded that Horrigan did not meet any of the elements constituting that crime either.

While the NPPA is gratified to see that prosecutors had the common sense to drop these charges (as has happened in almost all such cases around the country) it is too bad that the North Port police did not use the same good judgment. As is often said in police parlance “we can do this the easy way or the hard way.” The latter choice resulted in six-figure settlements in two recent cases. Once again, it appears that police ignorance and arrogance concerning constitutional rights may result in another costly combination, ultimately born by taxpayers who can ill afford it.

In a late-breaking development Ms. Mogensen announced in a press release that she has filed a notice with the City of North Port claiming monetary damages in excess of $200,000.00 based upon false arrest, retaliation for the exercise of First Amendment rights, and malicious prosecution.

Posted in Access, confiscated, detained, False Arrest, First Amendment, First Amendment rights, Florida, FLorida ACLU, Fourth Amendment, Fourth Amendment rights, Lawsuit, Legal, Malicious Prosecution, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Forum, Public Photography, Reasonable Expectation of Privacy, Recording, Recording Police, retaliation for the exercise of First Amendment rights, Search and Seizure, video cameras | 2 Comments »

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