Search

NY Federal Judge Rules in Photographer’s Favor Supporting 1st and 14th Amendment Rights

February 27th, 2017 by Mickey Osterreicher and tagged , , , , , , , , , ,

Today federal court Judge J. Paul Oetken denied a  motion to dismiss by the City of New York allowing the case, Jason B. Nicholas v. The City of New York, to proceed. The civil rights lawsuit was brought pro se (on his own) by Mr. Nicholas, a professional photojournalist, against Defendants William Bratton, Stephen Davis, Michael DeBonis, and the City of New York on December 8, 2015.  The suit alleges that Defendants violated Mr. Nicholas’ First and Fourteenth Amendment rights by revoking his NYPD issued press credential without due process and in retaliation for the content of his speech.

The Order and opinion out of the United States District Court for the Southern District of New York found that the government cannot pick and choose among which newsgatherers to allow access to a scene or to information and that the NYPD’s restriction on newsgathering may have violated the First Amendment. The court also found that journalists may very well have a First Amendment interest in their NYPD-issued press credential that calls for due process protections, and that the NYPD summary revocation of press credentials may have been without due process, violating the Fourteenth Amendment. Additionally, the court found that the city may have an unconstitutional unwritten policy to obstruct and interfere with newsgathering in general and with Mr. Nicholas’ newsgathering in particular.

See: Nicholas v. Bratton Opinion 02-27-17

 

Posted in Access, First Amendment, First Amendment rights, Motion to Dismiss, National Press Photographers Association, News Photography, Newsgathering, NPPA, NY Daily News, NYPD, photographers, Photographers' Rights, photojournalism, Press Credentials, Regulations limiting photography | No Comments »

Photographers vs. NFL, AP & Getty: 2nd and 7

December 20th, 2013 by Mickey Osterreicher and tagged , , , ,

*********UPDATE****************

U.S. District Judge Robert W. Sweet ruled on August 13, 2015 that the photographers must amend their complaint prior to appealing the dismissal of their copyright claims to the U.S. Court of Appeals for the Second Circuit. The court declined to enter a final judgment in the matter, which it had dismissed last March, finding that the plaintiffs may replead their case and that a revised contract claim on the licensing agreements might avoid the need for a Second Circuit review.

“The plaintiffs indicate in their briefing that they intend to argue that the contracts ‘were invalid and unenforceable due to duress, coercion, unconscionability, and fraud’ and the court’s March 27 Order indicates that the argument may have significant merit,” Judge Sweet wrote. “A finding in the plaintiffs’ favor on their contract claims in the district court would thus significantly alter — or perhaps moot — their copyright claims in the Court of Appeals, rendering certification improper.”

In his ruling Judge Sweet noted that to preserve their copyright issue for appeal, the plaintiffs should “simply restate their copyright claims in their new complaint,” which could later be presented to the Second Circuit at the appropriate time. The court also granted a motion by Getty Images to compel arbitration of contract, copyright and antitrust claims which the plaintiffs are now pursuing.

In March the court granted the plaintiffs 20 days to file a new complaint and then approved a three-week extension for the amended pleadings to be filed. Then in May, the defendants claimed the photographers had missed that deadline and the case should finally be dismissed. But the judge disagreed, finding “the plaintiffs’ diligence in this case has been more than adequate, particularly as they have represented that they are prepared to file their second amended complaint within 48 hours of this motion’s resolution.

********* UPDATE ***************

U.S. District Judge Robert W. Sweet dismissed the lawsuit in a 129 page redacted Opinion finding that agreements between the NFL and AP along with Getty that allow the NFL to use photos royalty-free are not anticompetitive, writing “plaintiffs have failed to allege a plausible product market limited to NFL-related photographs at this juncture.”  He also found that  the photographers lacked standing and are barred from suing under antitrust laws “because their injuries are too secondary and indirect.” The judge also rejected the photographers’ claim that they “directly compete” with Getty and AP. “Plaintiffs are neither consumers nor competitors in the alleged market for commercial licensing of NFL-related photographs,” Judge Sweet wrote. “Indeed, the [amended complaint] clearly states that plaintiffs have always licensed the photos that they shot ‘on spec’ through third-party licensing agents . . . as such, Plaintiffs argument on this point must fail.”

The court also found that “while each Plaintiff retains copyright in his photos, he provides a broad copyright license to AP in all of his photos that are not rejected by AP.” Such a license allows the AP to “copy, disseminate and otherwise use” those photos. The judge noted that while their agreement requires AP to pay a royalty when it licenses the use of the photographers photos, it does not require that any royalty be paid where the AP receives no licensing fees itself. “the AP Contributor Agreements do not require AP to license the contributors’ photographs to third parties only through a ‘sale’ that would generate revenue and therefore royalties.” Judge Sweet wrote. “Nothing in the AP Contributor Agreements requires AP to issue only royalty-bearing sublicenses.”

The judge also dismissed the photographers’ copyright claims against the NFL because the agreement provided the AP with a valid license to use their images.

************************************************

In October seven photographers filed a copyright infringement lawsuit against the NFL, Getty Images and the Associated Press. This week the defendants responded with a motion to dismiss. The plaintiffs are Paul Spinelli, Scott Boehm, George Newman Lowrance, David Stluka, Paul Jasienski, David Drapkin and Thomas E. Witte.  They claim, among other things, that if they wished to continue licensing their NFL images for commercial uses, “they were forced to transition their NFL content from Getty Images to AP who had the contract with the NFL.” In turn, the complaint alleged that “Getty Images threatened to remove Plaintiffs’ other sports content from its distribution networks and/or terminate its relationship with Plaintiffs entirely if they did not agree to continue licensing their NFL content through Getty Images even after the expiration of its commercial licensing deal with the NFL.” The complaint stated “Getty Images also made clear that it would not ‘welcome back’ any contributors who moved their NFL content to AP should Getty Images ever regain the exclusive rights to license NFL content in the future.” 

The photographers also viewed Getty’s threats as “a blatant attempt to leverage its exclusive licensing agreement with MLB and other sports entities in order to force Plaintiffs to leave their NFL content with Getty Images” and “Because certain Plaintiffs had significant non-NFL content at Getty Images, including significant MLB photo collections, Getty Images’ position forced Plaintiffs to make an impossible choice between losing commercial licensing opportunities for their NFL content by not going to AP or giving up commercial licensing opportunities for their non-NFL content by leaving Getty Images.”

In its motion to dismiss the NFL claimed that the use of the photos “was fully within the scope of” its licensing agreements the AP  and Getty. AP claims in its motion to dismiss the lawsuit that the contracts it made with the photographers “licensed AP to make the uses of plaintiffs’ photographs” and also “authorized AP to issue sublicenses” to the NFL and others. In its motion, Getty also sought to dismiss the case and to “compel arbitration or in the alternative to stay the action.” Getty claims that its agreement with the photographers requires that they “arbitrate their disputes” and that the case should be put on hold “pending final resolution of the arbitration” in the event that the court does not grant the motion to dismiss.

Read the filed complaint here.

Posted in AP, copyright, copyright infringement, Getty Images, Motion to Dismiss, NFL, Photographers' Rights | No Comments »

Judge Dismisses All Charges Against R.I.T. Student Photojournalist Covering Occupy Rochester Protest

January 12th, 2012 by Mickey Osterreicher

Inside an almost packed courtroom, Supervising City Court Judge, the Hon. Teresa D. Johnson issued her Decision in the People v Acuff, et al.  All charges against 28 defendants were dismissed without prejudice.  Those defendants, except for one, had been part of an Occupy Rochester protest. The lone journalist was my client, 20 year-old R.I.T. photojournalism student Jonathan Foster. Mr. Foster is also a student member of the National Press Photographers Association (NPPA) which is why I had been asked to represent him.

Mr. Foster was charged with trespass (New York State CPL § 140.05) and for violating the Rochester Municipal Code (§79 -2- c. Remaining after park closing hours) on the night of October 29, 2011. From videotape evidence and a witness statement, it appears that Mr. Foster was on a public sidewalk at the time of his arrest although the accusatory instrument, based upon information and belief, stated he was in Washington Square Park shortly after its 11.p.m. closing time. His assigned story and photos were published 5 days later by the weekly R.I.T. Reporter in print and online at http://reportermag.com/article/11-04-2011/occupy-rochester-leads-to-arrests.

Before we ever got to court I had written letters to the Rochester Police Department, the District Attorney and the Mayor. All requested the same thing – dismiss the charges against Jonathan as had been done in so many other cities around the country where journalists were caught up and arrested along with protesters. All the letters were ignored.

In the letters I argued (to no avail) “that although not unlimited, the media enjoys a broad right under the First Amendment to photograph in public places such as streets and sidewalks. These rights are rooted in the First Amendment’s strong protection of speech within ‘public forums,’ the most commonly recognized examples of which include streets, sidewalks, and public parks.”

I was surprised that the police and prosecutors were unmoved. Months before this incident, I had met with Rochester Police Chief, James M. Sheppard, in order to help his department draft improved police-press guidelines after Emily Good (also one of the defendants in this case) had been arrested in June and charged with obstruction of governmental administration as she videotaped a traffic stop from the front lawn of her house. Her charges were dropped but not until the video had gone viral and the case became nationally publicized.

Jonathan and I had been in court together twice before. On November 17, 2011, I appeared on his behalf and filed a motion to dismiss. On that occasion he came with his parents who had driven five hours from Pennsylvania to support their son. The ADA offered and ACD (Adjournment Contemplating Dismissal). That would have meant that after 6 months and a few hours of community service the charges would have been automatically dismissed. We rejected that offer because Jonathan had already performed a community service by taking an publishing the photos but more importantly, since the OWS movement is unlikely to go away anytime soon, I worried that Jonathan would find himself back covering another demonstration, with its risk of another arrest. If that happened these original charges could be reinstated along with the new ones. It’s what’s known as getting jammed-up.

Instead I filed a 21 page motion to dismiss, arguing first that the information forming the basis for the arrest was defective in that “every element of the offense charged and the defendant’s commission thereof must be established by ‘non-hearsay allegations of the factual part of the information and/or of any supporting depositions.” Almost two months later the court agreed, finding that Chief Sheppard (did I mention that he was there that night, made a number of arrests, had his picture taken by Jonathan and signed the accusatory instrument against all the defendants?)  “does not sufficiently allege non-hearsay factual allegations establishing every element of trespass.”

The dismissal motion also argued that the charges against Mr. Foster should be dismissed “in the furtherance of justice.” Pursuant to CPL §170.40, “an accusatory instrument . . . may be dismissed in the interest of justice . . . when, even though there may be no basis for dismissal as a matter of law . . . [where] such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.” In Jonathan’s case there were many such factors, the first of which was that that at the time of the alleged incident he was not there to protest but as a journalist covering a story of public interest. The United States Constitution has long protected the right to a free and robust press. The ability to gather and disseminate news is abridged when the government, under color of law, interferes with and arrests journalists reporting on issues of public concern.

Another factor to be considered in a motion to dismiss in the interest of justice is the “character and condition of the defendant.” Here Jonathan had much to commend him. He is in his junior year with a 3.43 GPA, attending R.I.T. on a presidential scholarship and a member of the honors program. He is an Eagle Scout. He has never been in trouble with the law, has never been arrested or charged with any crime before the instant matter. His first pictures were published in the Reporter Magazine in October 2009 and he has worked for the Reporter Magazine regularly since October 2010. In October 2011 he became a staff reporter/photographer.

Additionally, Mr. Foster was wearing (go to link to see a photo of his arrest) a sky blue shirt from his school magazine over his raincoat with large block letters spelling “REPORTER” on the front and he identified himself as such at the time of his arrest. He was also taking pictures with a professional Nikon camera, lens and flash unit, whereby any reasonable person should have observed and known that he was a journalist covering a news story.

In the meantime the Rochester Democrat & Chronicle printed an editorial on November 23, 2011 The headline read “Uphold First Amendment rights” and went on to state that Jonathan’s “prosecution could have a chilling effect on First Amendment rights to freedom of the press. District Attorney Mike Green should reconsider.” He didn’t.

In another appearance on December 14, 2011, I made those arguments orally along with more than a dozen other attorneys representing various defendants. The judge listened and then reserved her decision. Until Today.

But today the Judge never reached those issues and denied dismissal on those grounds because then she would have had to dismiss “with prejudice,” which, means that Monroe County would be precluded from re-filing the charges. Remember the second sentence of this story? “All charges against 28 defendants were dismissed without prejudice.” Pursuant to today’s decision, that means should police or prosecutors decide to re-file any of these charges the “complaints and supporting depositions [ ] must establish non-hearsay allegations with respect to each individual defendant.” (emphasis added)

As a photojournalism student Jonathan says that this incident proved a valuable if not difficult lesson for someone just starting out. Let’s hope it is a “teachable moment” for the police, prosecutors and the courts as well.

 

Posted in First Amendment, First Amendment rights, Interest of Justice, law, Legal, Motion to Dismiss, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Rochester, Occupy Wall Street, photographers, Photographers' Rights, photojournalism, Police, Public Forum, Public Photography, R.I.T., Rochester Police, Student, students, trespass, Without Prejudice | No Comments »