Search

Charges Against 2 Student Journalists Dropped in Atlanta

October 15th, 2012 by and tagged , , , , , , , , , , , , , , , ,

Charges against two student journalists arrested while covering the Occupy Atlanta protests last year have finally been dropped. College journalists Alisen Redmond of The Sentinel at Kennesaw State University and Judith Kim of The Signal at Georgia State University were arrested by police on November 5, 2011 on charges of “obstruction of traffic,” even though both women were standing with a group of other media reporters on a street that police had already closed to traffic.

Atlanta Mayor Kasim Reed announced the decision to drop the charges on October 13 during a conference held by the National Association of Hispanic Journalists. When asked why he had failed to address the matter sooner, Reed responded that “he had not heard anything about it in the press or from his assistants.” Upon learning that the charges had been dropped, NPPA General Counsel Mickey H. Osterreicher said, “we applaud the city’s actions and hope this incident will serve as an example to others that it is never too late to make sure that justice is served.”

Osterreicher had sent Mayor Reed a letter on October 1 asking him to dismiss the charges against the students. Among other things, the letter, written on behalf of The American Society of News Editors, The Reporters Committee for Freedom of the Press, The Atlanta Press Club, Cable News Network, Inc., The American Society of Media Photographers and The Student Press Law Center, urged Mayor Reed to “use your good offices to help seek an immediate dismissal of these charges in the interest of justice.”

An even earlier letter from The Student Press Law Center’s Executive Director Frank LoMonte was sent on November 7, 2011. In that letter LoMonte asked Mayor Reed to “immediately initiate an investigation into the circumstances of these student journalists’ arrests, and that you instruct the Police Department to withdraw all charges against the students and against any journalist whose ‘crime’ consists of standing on public property non-disruptively gathering news.”

NPPA has repeatedly pointed out to numerous groups and law enforcement agencies that actions by officers to interfere with and detain those engaged in Constitutionally protected activity under color of law is wrong. The NPPA has also strongly objected to journalists being harassed, intimidated and arrested while covering news stories because they were not considered to be “properly credentialed” by the police.

Posted in Assault on Photographers, Attack Photographers, detained, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Recording Police, Student, students | No Comments »

NPPA SEEKS DISMISSAL OF CHARGES AGAINST TEMPLE UNIVERSITY PJ STUDENT

March 22nd, 2012 by Mickey Osterreicher and tagged , , , , ,

*******UPDATE – See reply from Philadelphia Police Chief Charles H. Ramsey.

******* UPDATE – See attached Philadelphia Police Commissioner’s Memo dated 9-23-11 regarding Photography and Recording of Police Officers While Performing Official Functions in Public Places.  Clearly the officers involved in this incident violated that policy.

The NPPA sent a letter to Philadelphia Police Commissioner, Charles H. Ramsey seeking the dismissal of all charges against Temple University photojournalism student Ian Van Kuyk. Mr. Van Kuyk was arrested on the night of March 14, 2012 outside his residence while taking pictures of uniformed Philadelphia police performing a routine traffic stop.  In addition to the dismissal of all charges, the NPPA also requested that the incident “be fully investigated with commensurate disciplinary measures for the officers involved.”

Mr. Van Kuyk, who was with his girlfriend (also arrested) said he never came closer than ten feet (10’) to the scene when he was ordered back, voluntarily backed up and was at least thirty feet (30’) away when a uniformed police officer approached Mr. Van Kuyk in an aggressive manner demanding that he stop taking pictures. Mr. Van Kuyk politely told the officer that he was a Temple University photojournalism student and also that he was within his rights to be taking photos on a public street.

Without provocation the officer then began pushing and shoving Mr. Van Kuyk. In response to Mr. Van Kuyk’s statement that his rights were being violated in a public domain the officer is alleged to have responded “Public domain, yeah we’ve heard that before!” whereupon he threw Mr. Van Kuyk to the ground and began pushing his face into the sidewalk. In order to avoid having the camera (which he announced was school property) damaged during this assault by your officer Ms. Feighan attempted to retrieve it from Mr. Van Kuyk’s hand but was also taken to the ground by another officer. They were then both handcuffed and placed in patrol cars.

He is charged with five (5) offenses (four (4) misdemeanors and one (1) felony): Obstructing Justice, Resisting Arrest, Hindering Apprehension and two (2) counts of Disorderly Conduct. Ms. Feighan, who originally was at the same station was later taken to a different station where she was detained for more than eighteen (18) hours. Neither of them were told the names of the officers involved, nor did they receive a copy of an accusatory instrument. Ms. Feighan’s preliminary trial was held on March 20th (less than a week after the incident) and Mr. Van Kuyk’s is scheduled for April 16, 2012.

 

 

 

 

 

 

 

 

it is also alleged that at least two (2) officers came up to Mr. Van Kuyk’s window and made threatening comments to him. He was then taken to the 1st  District police station where he was held for nearly twenty-four (24) hours. He was not allowed to make a telephone call for nearly eight (8) hours at which time he was told (for the first time) that he was being charged with disorderly conduct.

 

Upon Mr. Van Kuyk’s ROR he came to learn that he was being charged with five (5) offenses (four (4) misdemeanors and one (1) felony): Obstructing Justice, Resisting Arrest, Hindering Apprehension, Disorderly Conduct and Disorderly Conduct – Fight II. Ms. Feighan, who originally was at the same station was later taken to a different station where she was detained for more than eighteen (18) hours. Neither of them were told the names of the officers involved, nor did they receive a copy of an accusatory instrument. Ms. Feighan’s preliminary trial was held on March 20th (less than a week after the incident) and Mr. Van Kuyk’s is scheduled for April 16, 2012.

 

Posted in Access, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Student, students | 3 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 »

Seventh Circuit Rules: States May Restrict Broadcasting of Publicly Sponsored Sporting Events

August 25th, 2011 by Alicia Calzada and tagged , , , , , , , , , , ,

In a long awaited ruling, the Seventh Circuit on Wednesday held that the Wisconsin Interscholastic Athletic Association (WIAA) was within its rights to grant exclusive broadcast rights to a private commercial vendor and to charge news organizations a fee for the right to broadcast games. The court held that such arrangements do not run afoul of the First Amendment.

Addressing only the issue of the broadcasting of the entire event, the court held that a sporting event was a “performance” and the right to broadcast an event in it’s entirety is a proprietary right that a governmental entity may exercise. The case, WIAA v. Gannett began when The Appleton Post-Crescent, a Gannett newspaper, broadcasted several state championship football games online in their entirety, believing that it was within their First Amendment right to do so. The WIAA sued.

The court first rejected the notion that this case was a copyright case and then proceeded to make intellectual property analogies to the sporting events, repeatedly calling the sporting events “performances,” (performances are protected by copyright) and comparing sporting events to concerts, plays and patents, all of which have protectable intellectual property elements. No court has ever held that a sporting event is a copyrightable performance, and this court did not either. A sporting event is not a work of authorship like a concert or a play. While the court fell short of explicitly holding that a sporting event has intellectual property rights, it basically upheld the assertion of intellectual-property-like rights by the WIAA (while insisting that no intellectual property rights were involved). The underlying basis for the court’s holding was the Supreme Court case of Zacchini v. Scripps-Howard, which held that a television station misappropriated the property of a human cannonball performer by broadcasting the performance in its entirety.

A bright spot in the ruling is that the Seventh Circuit rejected the lower court’s finding that sports reporting deserves less First Amendment protection than political reporting, and held that “[t]here is no basis for a rule that makes the press’s right to coverage depend on the purported value of the object of their coverage.” This is a win for the First Amendment.

Importantly, the ruling is limited to the single issue of whether or not the media has a First Amendment right to broadcast an entire event sponsored by a state actor. But the reasoning is broad enough to be interpreted to support a multitude of restrictions. For example, within the restrictions imposed by the WIAA under the exclusive broadcast agreement, news organizations don’t have a right to “live blog” the events. The court took no issue with that aspect of the exclusive agreement, leaving the live blog restrictions in tact.

The court specifically didn’t address issues in the conflict related to still photography, such as reprint sale restrictions, because they were not raised by the parties on appeal.

It will not be surprising if this case is followed by further restrictions on coverage of government events. The fear is that municipalities and sports associations alike may interpret this ruling to mean that a city can sponsor a public event and then restrict who may broadcast the event. This ruling could extend to restrictions on broadcasting parades, marathons, and city-sponsored festivals. Several years ago a Los Angeles District Court ruled that the city could not grant exclusive rights to an “official” television station.

The result is a disappointment to the NPPA, which joined several other news organizations in filing an amicus brief in support of the newspaper  last year.

The entire Seventh Circuit ruling can be found here: WIAA v. Gannett Seventh Circuit Opinion, No. 10-2627

An extensive legal article that I wrote on the issue can be found here:

An earlier NPPA article on the conflict can be found here.

Posted in Access, blogging, broadcasting, copyright, Federal Court, First Amendment, Legal, News Photography, photojournalism, students | No Comments »

WFH-101

July 29th, 2011 by Alicia Calzada

Work for Hire. To many it’s an ugly word. To others, it is just something they live with. What it shouldn’t be is ignored. If you are a freelancer, and you sign a contract providing for a work for hire, you need to know what it means. There are plenty of articles to tell you to avoid it and why, but this is intended to help you understand the basics.

What is a Work for Hire Contract?

Copyright is all about authorship. The author owns the copyright, that is, the right to copy and publish the work. When you are a staff photographer, the photos you produce on the job are automatically work for hire. The employer is consider the “author” and therefore they own the  copyright. So if it comes with a salary, benefits, insurance, and a 401(k), it’s probably a work for hire. The employer owns the copyright and all of the benefits that go with it, such as control over where and when it is published. The upside is that you have a salary, benefits, insurance and a 401(k).

What a work-for-hire contract does is create the same kind of relationship between a client and someone who is not an employee. In other words, the client gets the benefit of the copyright and total control over the work. But you don’t get a salary, insurance or a 401(k).  Not just any photo assignment is eligible for work-for-hire agreements. Rather, only “collective works, motion pictures, translations, supplementary work, atlases, and test material” can gain work-for-hire status which basically transforms the client into the author. Even if a work falls into a category making it eligible for WFH status, there must be an express agreement, signed by the photographer.

Is it a WFH?

How do you know if you are agreeing to a work for hire? First, as noted above, if you are an employee whose job it is to take pictures, this is a work for hire automatically. If you are a freelancer, the language in a work-for-hire contract will specifically say “work for hire” or “work made for hire.” Sometimes it will be a little more subtle and state that you are assigning the copyright, which has a similar practical effect. Most WFH contracts actually say both.

Signed Contract Required for WFH

It is important for both editors and photographers to know that outside of the context of employment, a work for hire only arises in circumstances where there is a signed contract and only is available in certain circumstances. There is no “implied” work  for hire. A client cannot tell you that “work for hire” is their policy and by working for them you automatically agree to it. You must actually agree to it in writing, before the assignment. Furthermore, a client cannot tell you after you have already shot the assignment that you must sign a WFH contract to get paid (this could be an ineffective modification, unless there is additional payment offered).

The Gray Areas

So, if you’re a full time staff photographer, it’s clear you’re in a work-for-hire when you are on the job. If you sign a work-for-hire contract for a photo assignment for a publication, you are probably in a work for hire. But there may be some less exact circumstances that you find yourself in.

I created this 3-step chart a couple of years ago to help clarify when something might legally be a work for hire, and when it isn’t. The chart examines a series of factors that make it more or less likely that it might be a work for hire. Click below to download it.

Work for Hire chart

“Work for hire” not the only words to avoid.

It is important to note that while “work for hire” ensures a transfer of copyrights, it is not the only way you can end up transferring your rights. Some contracts simply state that you “assign” your copyright to them. This also must be in writing, but it has the same effect. You should also watch out for contracts that give the client the “exclusive” right to use the photo. You may still retain the copyright in that case, but it’s pretty useless if you don’t have the right to use the photo.

It’s important not to be intimidated by this language, but to learn about it, and learn to spot it. If you are like most photographers, you will find that giving up your copyright is rarely a good deal, but many photographers also have decided that in a business, everything has a price, and there are some circumstances that warrant it. While photography can feel very personal, it is important to approach such business decisions from a business perspective.

Happy Shooting!

Posted in business, contracts, copyright, photojournalism, students | No Comments »

Why Journalists Should Dump Twitpic Now

June 13th, 2011 by Alicia Calzada and tagged , , , , , , ,

You may remember how last year AFP and Getty sued Daniel Morel, claiming that by posting photos on Twitpic, he had given them permission to use the images. A court ruled that he hadn’t, despite the onerous rights-grabbing Twitpic terms of service. While I always believed that AFP/Getty would lose, because they had no affiliate relationship with Twitpic, I remember wondering how long it would be before a photo agency partnered with Twitpic to monetize the Twitpic terms. I thought that if Twitpic had retained permission to sell images posted on their site, it was a small wonder that no agency had partnered with them to make money selling these images. Well, that day has come.

While Twitpic is not the first social networking company with grabby terms of service, last month there was an important announcement. World Entertainment News Network (WENN) has become Twitpic’s “exclusive photo agency partner.

  • From their Terms of Service:

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.   [  http://www.twitpic.com/terms.do

  • From the New York Times:

World Entertainment News Network, a news and photo agency, announced this month that it had become the “exclusive photo agency partner” of Twitpic, a service with over 20 million registered users that allows people to upload images and link to them on Twitter. The deal allows the agency to sell images posted on Twitpic for publication”

Together that means that anything posted through twitpic is fair game to be licensed for a profit without your knowing or seeing any of it.

Why this is bad for photojournalists

  • If you are a staffer at a newspaper, you don’t own the copyright to the images you shoot on the job. You may accidentally be giving away your company’s photos and getting yourself in a whole lot of legal trouble (each of these TOS contain indemnification clauses so if your company sues, you might end up involved and even liable).
  • if you are an independent photographer, posting images to Twitpic is the equivalent to giving your photos to an agency and not asking for any payment or promise of royalties. WENN can make thousands of dollars off of your pictures and they don’t have to give you a dime. While you still retain licensing rights, a potential user is more likely to just go to an agency. They certainly won’t be thinking about how they can make sure you get paid.

Why is this a big deal now?

Social networking sites have had rights-grabbing terms like the Twitpic terms for years, but this is the first time I have heard of any of them openly trying to use those terms to profit from those images beyond the scope of the service itself.  News organizations have certainly used images from social networking sites, but it is not usually clear how or if they have received permission or paid a licensing fee. However, Twitpic is perfectly clear: they make a profit, you don’t.

The Quick Fix

Fortunately there is an easy fix for twitpic. Follow the lead of celebrities like Ellen Degeneres and take your photos off now. There are several alternative sites that will host your images to post on twitter without onerous terms.

– yfrog is integrated with twitter and easy to connect to from your twitter account. Their policy is simple: “ImageShack will not sell or distribute your content to third parties or affiliates without your permission.”

– MobyPicture is another service that has similar terms.

If you are a staffer, be sure to check with your employer about their social networking policies regardless of what service you use. News organizations are in love with social media and are pushing their employees to use it, but they should all be creating policies and preferences. With the latest Twitpic move, it would behoove news organizations to create a list of social networking options that don’t put the company’s content at risk.

Twitter itself is starting to add picture sharing to its service. The twitter terms are as onerous as Twitpic, and they are even more straightforward about their intentions, noting that posting to Twitter gives them the right “to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services.”

Posted in contracts, copyright, law, photographers, photojournalism, students | 2 Comments »

Oral Arguments in the WIAA v. Gannett case: Media coverage of High School Sports

January 16th, 2011 by Alicia Calzada

There were oral arguments on Friday in the United States Court of Appealsfor the Seventh Circuit in the WIAA v. Gannett case. You may remember this case originated a couple of years ago when a Wisconsin newspaper webcast several high school football tournaments against the wishes of the tournament organizers, the Wisconsin Interscholastic Athletic Association. The WIAA sued, initially in state court, seeking a declaration that it had broad rights to own the descriptions and depictions of the games. The case was moved to federal court and the complaint was changed to involve fewer claims.

Currently the primary issue involves whether or not the WIAA can contract with a private company to exclusively license the rights to broadcast the entire game (beyond just highlights). WIAA is a “state actor” which means that in effect, they are like the government, and they cannot restrict speech any more than a city or state government could.

A panel of three judges began by peppering the newspaper’s attorney, Robert Dreps with hypothetical questions about whether or not a school could restrict coverage related to school plays, or operas, which have copyright protections. Dreps explained how previous courts have ruled that there are no copyright protections in athletic competitions. The judges also raised questions about whether or not the case should ever have been moved to federal court. At one point one of the judges compared the broadcast of the games to a broadcast of the oral arguments themselves. In addition, the issue of whether a ruling in favor of the newspapers would affect broadcast agreements in college basketball games was raised.

These issues are not simple, and because of that, the debate is fascinating. If you have time, it lasts less than an hour. At play are cross-section of many issues, including First Amendment, copyright, and internet law. News organizations all over the country should be paying attention to this case and its outcome.

A recording of the oral arguments can be heard here and there is an article about the original case here.

Posted in Access, copyright, law, multimedia, photojournalism, students | No Comments »

« Previous Entries