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NPPA, ASMP & Other Photo Groups Send Letter to Time, Inc. Expressing Concerns Over New Photo Agreement

November 24th, 2015 by Mickey Osterreicher

Letter of the NPPA and ASMP joined by the American Photographic Artists, Digital Media Licensing Association and Professional Photographers of America to Mr. Norman Pearlstine, Chief Content Officer of Time, Inc. regarding concerns over its Commissioned Photographer Agreement

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First Circuit broadens citizens’ right to record police officers in public

June 16th, 2014 by and tagged , , , , ,

The constitutionally protected right to record police officers on duty in public places such as parks, which was affirmed in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), has been affirmed by the First Circuit to not only include parks and other traditional public places, but now even routine traffic stops.

In Glik, the plaintiff filmed several Boston police officers arresting a young man on the Boston Commons. The court in Glik held that the First Amendment protects the right of individuals to videotape police officers performing their duties in public, recognizing that it firmly establishes and protects “a range of conduct” surrounding the gathering and dissemination of information. Id. at 82.

The recently decided case of Gericke v Weare broadens this right to include routine traffic stops, concluding that a traffic stop does not extinguish an individual’s right to film. The main question that was presented in Gericke was whether a a routine traffic stop was a police duty carried out in public. The court said yes and compared Glik with Gericke, stating that “those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is police carrying out their duties in public.” Id.

But the court recognized that there may be some limitations on this right because the circumstances of a traffic stop can potentially become dangerous to an officer, if for example in this case, firearms are present in the stopped vehicle.  Such limitations may come into play when a police officer’s ability to perform his duties are actually impaired.

Reasonable restrictions, such as those of time, place, and manner, on the exercise of the right to film may be imposed when the circumstances justify them. See Glik, 655 F.3d at 84. A police officer can order filming to cease only when he/she can reasonably articulate that the filming itself is interfering, or is about to interfere, with his/her duties. Glik established that a reasonable officer cannot, consistently with the Constitution, prosecute citizens for violating wiretapping laws when they peacefully record a police officer performing his or her official duties in a public area.” Id. (emphasis added).

In Gericke, since there was a genuine factual dispute about whether the plaintiff had been disruptive, the court denied the officers’ motions for summary
judgment on the retaliatory prosecution claim stemming from the wiretapping charge. The First Amendment right to film police activity carried out in public,
including a traffic stop, necessarily remains unrestricted unless it is deemed to be disruptive.

**** Update: Shortly after the decision, the Town of Weare settled the lawsuit for $57,500

Posted in Boston Police, cell phone cameras, First Amendment, First Amendment rights, Glik v Cunniffe, Police, Recording, Recording Police, Simon Glik, Uncategorized, video cameras, violating | No Comments »

Boston Police Backlash Against Recorded Phone Call To Face Test

November 13th, 2013 by and tagged , , , , , , , , ,

Last August a Boston police officer aggressively confronted a man who was recording law enforcement on a public street. Tomorrow, a judge will decide whether to continue the case against a journalism student charged with illegal wiretapping for calling BPD about the incident and recording his conversation.  The judge will also decide whether to drop charges against a blogger who wrote an article supporting the student.

Taylor Hardy called BPD headquarters for comment after he saw a video of officers forcing a man to leave the area of an investigation.  Hardy recorded his call to Boston Police Spokesperson Angelene Richardson, and later posted the recording to YouTube.

Hardy’s curiosity as to why the officers asked the man to leave is hardly surprising, as courts have repeatedly reaffirmed citizens’ right to record police on public property.

Yet Hardy’s call didn’t yield much, as Richardson said she hadn’t heard about the run-in with the cameraman.  Despite this, when police found the recording of the seemingly innocuous call on Hardy’s YouTube channel, they slapped him with an illegal wiretapping charge.  Richardson claimed he hadn’t asked her permission before recording their conversation (it is illegal to record another person without consent under Massachusetts law).  Hardy says he had consent, but could face five years in prison if convicted.

Photography advocate Carlos Miller wasn’t happy when he heard about Hardy’s ordeal.  Hardy first saw the recording of police on Miller’s website, Photography Is Not A Crime, where Hardy works as a part-time employee.  Miller responded by writing an article calling for BPD to drop the charges. He also asked others to join him, and published Richardson’s office email and phone number in the post.  BPD responded to by filing a criminal complaint against Miller for witness intimidation, claiming he had gone too far by posting Richardson’s contact information.

NPPA President Mike Borland said he’s astonished that it has come to this.

“It’s mind boggling that there are still law enforcement officers in major metropolitan departments who don’t know they can be photographed doing their job in public,” Borland said, “It’s downright maddening the steps being taken in Boston as a result of this ignorance. This snowball of a public relations disaster would not be happening if officers were properly trained and then properly disciplined when they break the rules.”

Miller agreed, adding “there are real issues and real crime in Boston that taxpayers would want money spent on rather than prosecuting people who are simply trying to hold the police accountable for their actions.”

In a statement this morning, the Newspaper Guild- Communication Workers of America joined those demanding Boston Police drop all charges.

A magistrate judge will decide Thursday whether there is probable cause to continue the cases against Hardy and Miller.

It isn’t clear that the charges against Hardy will be dropped, as he didn’t capture Richardson’s consent on tape.  However, the state does carry the burden of proof, so it will need to produce evidence that Richardson didn’t know she was being recorded.

The charge against Miller is even more of a stretch.  It’s difficult to see how posting the office contact information of a public employee could qualify as “intimidating a witness”

The NPPA will continue to shed light on instances where police, due to ignorance of the law or otherwise, refuse to respect photographer’s rights.  Borland added “The NPPA offers to help educate the Boston PD so every officer will know the public’s rights to photograph and record police activity.

********* UPDATE 11/14/13 ***********

Carlos Miller reported yesterday that a Boston Police attorney asked for a continuance of the hearing until next Friday 11/22/13.

Posted in First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism, Uncategorized | No Comments »

‘Misappropriation’ Art or Transformative Fair Use? It’s Complicated!

October 17th, 2013 by Mickey Osterreicher and tagged , , , , , , , ,

In the ongoing copyright infringement case by photographer Patrick Cariou against “appropriation artist” Richard Prince, both sides have filed briefs respectively supporting and opposing the August 21, 2013 petition for a writ of certiorari filed by Cariou, appealing the April 2013, ruling in the case by a three judge panel of the United States Court of Appeals for the Second Circuit. That decision reversed and vacated a 2011 lower district court order involving the application of the fair use doctrine to artistic works. Cariou originally published his photographs in 2000 in a book entitled Yes, Rasta, while Prince’s work was exhibited in 2008 as Canal Zone collages.

In his petition to the Supreme Court, Cariou argued that the Second Circuit ruling placed too much emphasis on whether Prince’s works could “reasonably be perceived” by the judges as transformative rather than properly balancing the traditional four factors involved in determining fair use.

Cariou also stated, “the Second Circuit majority’s ‘I know it when I see it’ approach [to fair use], should it become widely adopted, risks tilting that balance against copyright owners (particularly photographers who may not have aggressively marketed their easily-copied digitized works).”

Cariou also expressed concerned that if the Appeals Court ruling stands it would make copyrights “dependent upon the unpredictable personal art views of randomly assigned judges.”

In his opposing brief, Richard Prince cautioned against “a narrow interpretation of Campbell [Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)] that is inconsistent with the goals of copyright and that, if followed, would create a bright-line rule limiting fair use to parody and satire, thereby eviscerating this court’s repeated and well-reasoned rule of law that no bright-line rules exist in the fair use analysis.”

Responding to that argument, Cariou’s attorney said the Second Circuit ruling “distorts Campbell [and] unduly elevates ‘transformative’ into a conclusory buzz word that renders superfluous other important parts of the Copyright Act.”

In that ruling the majority held (with a dissent in part by one of the judges) that the use of copyrighted photographs “as raw material” in creating new “artistic” works may be considered “transformative” fair use even when such works do not “comment . . . on aspects of popular culture closely associated with” the photographs or the photographer who took them.  Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).

The district court had initially granted Cariou’s motion for summary judgment, finding that the artwork had infringed upon his copyrighted photographs. The lower court had also entered an injunction compelling “the defendants to deliver to Cariou all infringing works that had not yet been sold, for him to destroy, sell, or otherwise dispose of.”

But the Court of Appeals disagreed with the lower court analysis of the fair use factors and found that whereas “the district court imposed a requirement that, to qualify for a fair use defense, a secondary use must ‘comment on, relate to the historical context of, or critically refer back to the original works,’” they believed the proper determination is “if ‘the secondary use adds value to the original – if [the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings” (Internal citation omitted). They also found that “for a use to be fair, it ‘must be productive and must employ the quoted matter in a different manner or for a different purpose from the original’” (Internal citation omitted).  With regard to the transformative nature of the work, the court thought it also critical to determine how the work in question may be reasonably perceived by the reasonable observer as compared with the original work.

To illustrate how difficult these types of decisions are, the case involved 30 pieces of artwork, but the appeals court was only able to make a determination on 25 of them, remanding the remaining 5 pieces back to the lower court for application of “the proper standard” so as to “determine in the first instance whether any of them infringes on Cariou’s copyrights or whether Prince is entitled to a fair use defense with regard to those artworks as well.”

In a five page dissent Judge John Clifford Wallace agreed that the lower court’s finding was flawed, but believed that all of the works in question should be remanded for further reconsideration and factual determination under the legal standard just articulated by majority.  He also opined that “perhaps new evidence or expert opinions will be deemed necessary by the fact finder—after which a new decision can be made under the corrected legal analysis.”

Judge Wallace also took the majority to task for employing its own “artistic judgment” when comparing the transformative nature between the two works. He cautions against departing from aesthetic neutrality in that he would feel “extremely uncomfortable” for him do so in his “appellate capacity,” let alone his “limited art experience.”

Noting the court had appeared to move away from that foundational imperative in determining fair use he cited the admonition by Justice Oliver Wendell Holmes that “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”

Court watchers believe that the odds of the high court taking this case are slim because no split decisions exist among the other circuit courts regarding fair use. The other factor that mitigates against the court granting the petition is the argument by Prince that the Appeals Court decision is consistent with the Supreme Court precedent on fair use established by Campbell.

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Fallout from Asiana Air Prank Provides Lesson on DMCA Takedown Notices

July 26th, 2013 by and tagged , , , , , , , , , , , ,

Fallout from a prank associated with the tragic Asiana airlines crash is teaching a valuable lesson about copyright law and the fair use defense.

When a transpacific flight crash-landed at San Francisco International Airport earlier this month, preliminary media reports focused on the key questions, “Is everyone okay?” and “What went wrong?”

But even before authorities could clear the wreckage of Asian Airlines Flight 214, whose crash claimed the lives of three and left more than 180 injured, the story had taken a different turn.

Duped by an intern intent on playing a tasteless prank, KTVU in Oakland, California aired a list of names purported to be those of the pilots of ill-fated flight.  It quickly became clear that the list was nothing more than a racist joke.

asiana-racist-pilot-names

Hundreds of YouTube videos of KTVU’s snafu sprang up in the hours following the incident.  Obviously not anxious to see its gaffe immortalized, and concerned about the insensitive nature of the prank, KTVU filed “takedown notices” under the Digital Millennium Copyright Act in an attempt to suppress the content.

A DMCA takedown notice is a tool that allows the owners of digital content to request that a website operator or internet service provider take down media displayed without the owner’s permission.   If a website operator complies with a take down request, they are immunized from any legal action arising from the material in question.  This provides a substantial incentive for websites to defer to takedown notices.

The DMCA takedown notice is a remarkably effective tool for any creator of content to protect their work-product.  Its prolific use is evidence.  Google reports receiving more than 14 million DMCA copyright removal requests in the past month alone.

So why does a YouTube search of KTVU still yield dozens of clips of the Asiana Airlines debacle, many of those clips with millions of views?

It has to do with the way those clips are being used.  Copyright law allows the free use of a protected work for criticism, comment, news reporting, teaching, scholarship, or research.  So while the KTVU news clip is copyrighted content, those who want to voice an opinion on the situation by posting it to their YouTube account are entitled to do so.  The idea is to balance the author’s right to compensation for their work against the public interest in the spread of ideas and information.  In this case, people were clearly more interested in poking fun or expressing anger at KTVU than in profiting from the stations’ copyrighted content.

Given the digital photograph’s vulnerability to online misappropriation, professional photographers should be particularly aware of the fair use defense.  More often than not it will be the foundation of any defense to DMCA takedown notice, and in the case of legitimate fair uses, it will overcome the photographers claim of copyright infringement.

Whether a use qualifies for the fair use defense is determined on a case-by-case basis. A court will consider four factors in making its determination:

1)  the purpose and character of the contested use

2) the nature of the copyrighted work

3) the amount and substantiality of the portion taken, and

4) the effect of the use upon the potential market.

The Stanford University Libraries have put together an excellent in-depth analysis of the four factors, and Columbia University’s checklist can help in the initial evaluation of a fair use defense.

If you believe your work-product has been illegally used online and want to file a takedown notice, this quick guide explains the basic steps to putting together a claim.

Posted in copyright, copyright infringement, Digital Millenium Copyright Act, Fair Use, First Amendment rights, National Press Photographers Association, News Photography, NPPA, photographers, photojournalism, Uncategorized | No Comments »

NPPA Responds to Arrest of Detroit Free Press Photographer

July 17th, 2013 by and tagged , , , , ,

NPPA General Counsel Mickey Osterreicher says Detroit Police may have violated a local news photographer’s rights when they arrested her after she attempted to film officers on a public street.

In a letter to Detroit Police Chief James Craig today, Osterreicher also expressed concern over the unlawful seizure of Mandi Wright’s iPhone.  “Alleged behavior that chills free speech and violates protections against unreasonable search and seizure under color of law is of great concern to us,” Osterreicher said, adding that the apparent disappearance of Wright’s SIM card was equally troubling.

Video of the incident shows Wright filming a suspect being taken into custody.  A man in plainclothes notices the journalist and rapidly approaches her while demanding she “back off.”

Wright immediately identifies herself as a member of the press, to which the man responds “Ok. I don’t care who you are.”

The man, purported to be a plainclothes DPD officer who never identifies himself in the video, confiscated Wrights phone after a brief struggle.  Wright was then arrested.  She says at the time, she had no idea the unidentified man was law enforcement.

In his letter to Chief Craig, Osterreicher noted that an increasing number of photographers are being unlawfully interfered with, detained, or arrested by police.  “In any free country the balance between actual vigilance and over-zealous enforcement is delicate,” he said.  “It may be understandable that law enforcement officers have a heightened sense of awareness after pursuing an armed suspect – but that is no excuse for blatantly violating a person’s First Amendment rights.”

DPD says an internal investigation into the circumstances surrounding the arrest is ongoing.  Wright has not been charged with a crime.

The NPPA has offered to help the Detroit Police Department develop reasonable and workable policies, practices and training in order to avoid similar situations.

For more on the importance of the right to photograph in public, read this article written by Osterreicher and recently published in the National Sheriff Association Magazine. He also presented a training session at their national convention in Charlotte, NC about the importance of the right to photograph and record in public.

Posted in confiscated, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism, Uncategorized | No Comments »

NPPA, RCFP Keep Journalists Safe During Conventions

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

John West proudly displays his NPPA affiliation while covering protests during the DNC. Photo by Mickey H. Osterreicher

One could easily imagine that, after seeing how well things went during the RNC in Tampa, that members of the Charlotte-Mecklenburg Police Department (CMPD) might have let their guard down as the DNC began.  To the contrary, officers there remained on high alert throughout the convention and made use of every available resource to ensure that the DNC would go just as smoothly.

Mark Newbold, Deputy City Attorney for CMPD, said that after inclement weather deterred protestors at the RNC, CMPD officers were prepared for an increase in DNC protests.  While the number of protestors stayed below their expectations, Newbold said that his department’s preparedness allowed those who did come to protest to do so with limited police involvement.

“Most of the protestors, even the rowdy ones, have been willing to comply,” Newbold said.  “The main focus of the police is that we don’t focus on speech, we focus on criminal behavior.  You can say and do what you want as long as you don’t take violent acts against people or property.”

Protestors take a break in the middle of the street during the DNC. Photo by Mickey H. Osterreicher

While the CMPD sought to create an open environment for demonstrations, several protestors were arrested during the convention.  However, no journalists were arrested, a fact that Newbold credits in large part to NPPA General Counsel Mickey Osterreicher, who came to Charlotte in April to help educate and train officers regarding First and Fourth Amendment rights.  Newbold said the work of the department and the NPPA helped to create understanding between journalists and police rather than confrontation.

“After things went as well as they did in Tampa I was concerned that the coverage of the protests in Charlotte might be more problematic, but fortunately the feedback I received was that the police were extremely professional, cordial  and accommodating in both cities,” Osterreicher said. “It is a credit to the Tampa and Charlotte-Mecklenburg police departments that they were not only willing to embrace the idea of allowing the media to do their jobs but that they properly trained officers from so many other agencies to adopt and adhere to that policy,” he added.

Just like during the NATO Summit in Chicago, where Superintendent Gary McCarthy led his officers and in Tampa, where Police Chief Jane Castor and Hillsboro County Sheriff David Gee led theirs – CMPD Chief of Police Rodney Monroe was out on the street directing operations. It is believed that this hands-on approach is also credited with encouraging proper behavior and discipline by officers.

Charlotte-Mecklenburg Police Chief Rodney Monroe out on the street with his officers. Photo by Mickey H. Osterreicher

Brian Cunningham, public information officer (PIO) for CMPD, said that an important step the department took was to place field PIOs in several locations to work with the media.  The PIOs answered journalists’ questions and informed them of where to go.  Cunningham also credits Osterreicher with helping the department develop policies such as the field PIO program.

“Mickey helped with training on working with the media for large scale events,” Cunningham said.  “We were able to train our entire department in media relations, which was critical to our success.”

Highly visible Public Information Officers were on the scene. Photo by Mickey H. Osterreicher

Journalists across the nation feared the worst in the days leading up to the Republican and Democratic National Conventions.  Memories of the mass arrests of protestors and journalists during the 2008 conventions in St. Paul and Denver had not faded, and the arrest of journalists across the nation had steadily increased each year since then.

Although no journalists were arrested during the DNC, on the Saturday before the convention, Washington Post photographer Bonnie Jo Mount said she was approached by Bank of America security guards, who told her that she was not allowed to photograph the outside of their building even though she was on a public sidewalk.

Mount got in touch with Osterreicher, who immediately contacted the head of Bank of America corporate security and the head of security for the building to get clarification on their policies regarding photography.  Osterreicher said that the heads of security acknowledged that Mount had every right to photograph the building from the street, and assured him that the security guards would be made aware of the policies reflecting that right.

“It was very clear from my conversations with Bank of America that they were not happy about some of their overzealous security officers and were more than willing to remedy this problem,” Osterreicher said. “Later in the week I took a picture of the security fence and a guard in front of the building and no one said a word.”

Bank of America corporate security guard outside their headquarters in Charlotte. Photo by Mickey H. Osterreicher

There was also some Twitter traffic regarding two journalists being confronted by police at the direction of “undercover agents” who the journalists had apparently recognized and photographed. According to reports one of the journalists voluntarily deleted his images after both were stopped and searched by uniform police. No official complaints about this incident or any other interference with journalists were received by the Reporters Committee for Freedom of the Press (RCFP), which ran a hotline for journalists to handle any problems.

“If [the hotline] keeps one person from going to jail and allows them to get back on the street and reporting the news, then it’s worth it,” said Gregg Leslie, Interim Executive Director for RCFP.

Leslie said the hotline’s inception resulted from strife between police and the media back in 1972, when journalists felt that police were targeting them for arrest.  Since then, attorneys have stood at the ready for when a call comes through from a distressed journalist.

“Over the years it’s really been useful,” Leslie said.  “One to two times during a convention, there will be a mass arrest and reporters will get swept into it.” The NPPA and the Reporters Committee have worked together in the past but Osterreicher said the “cooperation between our organizations is a concrete example of what can be accomplished by partnering on these critical issues.”

In order to give journalists the best chance to have their charges dropped and get back to reporting, RCFP employed attorneys in the host cities of the convention.  This year those positions were assumed by Gregg Thomas and Carol LoCicero of the Tampa firm Thomas & LoCicero, and John Buchan of the Charlotte firm McGuire Woods. They attributed the fact that no calls of problems being received to the level of preparation that went into training officers for the convention.

“We informed the police from the outset that we were here and what our plans were [in the event of a journalist’s arrest],” Thomas said.

LoCicero said that officers were very receptive to the training that they offered prior to the convention, noting that the Tampa Police Department implemented a policy requiring an officer to get approval from a supervisor before making an arrest of a member of the media.

Buchan especially credits the work done by NPPA and the Reporters Committee in the months prior to the convention for informing officers of press rights and the importance of remaining cognizant of those rights while protecting public safety.  Buchan said the Charlotte-Mecklenburg Police Department (CMPD) did a great job of using the training to see that police and journalists alike would be able to do their jobs during the convention.

“The police in Charlotte really went to school on what happened in St. Paul and Denver and especially at this year’s Chicago NATO Summit,” Buchan said.  “They didn’t want a repeat of the arrests that took place in 2008 and they did a great job implementing policies to ensure that did not happen.”

Everyone had a camera and was taking photographs or recording. Photo by Mickey H. Osterreicher

Osterreicher noted that while he still continues to deal with photographers being interfered with and arrested on an almost daily basis around the country he is very pleased that in those situations where the police have made a concerted effort to avoid such confrontations, they have for the most part not occurred. “The NPPA board of directors made a decision in January of this year to take substantive steps to avoid a repeat of the mass arrests that took place during protests at prior national conventions,” Osterreicher said. “I am very appreciative of the support and direction I received from the board and the opportunity to have helped in some small measure,” he added.

NPPA President Sean Elliot said, “this is a great example of the positive effect of pro-active efforts by NPPA and other groups to reach-out to government agencies;” adding  “journalists, not just NPPA members, owe Mickey and all those involved in these efforts, a debt of gratitude.” “It is my sincere hope that such success can be built upon and spread to more routine interactions between the police and visual journalists,” he concluded.

Posted in Access, Democratic National Convention, First Amendment, National Press Photographers Association, photographers, photojournalism, Reporters Committee for Freedom of the Press, Republican National Conventiob, Uncategorized | No Comments »

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