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Additional Comments Filed by NPPA and Other Groups Following Orphan Works Roundtables

May 27th, 2014 by and tagged , , , , , , , , , , ,

Additional comments were filed by the National Press Photographers Association (NPPA) on May 20, 2014 on the issue of Orphan Works and Mass Digitization, as a follow-up to roundtable discussions held by the U.S. Copyright Office in Washington, DC on March 10-11, 2014. (See: http://www.copyright.gov/orphan/transcript/0310LOC.pdf and http://www.copyright.gov/orphan/transcript/0311LOC.pdf for transcripts of day 1 and 2 of those discussions).

The filing by NPPA supplemented additional post-roundtable comments submitted by the Digital Medial Licensing Association (PACA) on behalf of the Professional Photographers of America (PPA), the American Photographic Artists, Inc. (APA), the American Society Of Media Photographers (AMSP), the Graphic Artists Guild (GAG) as well as NPPA) in response to a Notice of Inquiry issued by the U.S. Copyright Office in February,  2014. These most recently submitted comments expanded on initial comments (submitted by NPPA to the Register on January 24, 2013).

The comments primarily responded to discussions at the round table from stakeholders who think that orphan works legislation is no longer necessary given their increased reliance on the doctrine of fair use. It is the position of the NPPA that, while the doctrine of fair use can be used as an affirmative defense, it is certainly is not broadly available to allow the use of photos without permission, credit or compensation. “This one size fits all approach appears to be what is turning Title 17 law on its head with copyright now becoming the exception to fair use. Rather than conducting a proper balancing of the four fair use factors, a number of courts have made such ruling once they determine that a use is transformative. NPPA asserts that this type of analysis was never intended to be applied as the sole determinative element in making a fair use ruling in an individual copyright infringement case, let alone in one involving mass digitization of millions of works,” wrote NPPA general counsel Mickey H. Osterreicher and advocacy committee chair Alicia Wagner Calzada (who is also an attorney) in their jointly drafted comments.

The problem of social media websites automatically stripping out any and all identifying metadata when images are uploaded to their sites, thus creating instant orphans of contemporary work, is also “an issue that needs to be addressed more seriously and, once properly resolved, would help rectify most of the orphan works concerns expressed by users,” the NPPA comments concluded.

Posted in copyright, copyright infringement, National Press Photographers Association, NPPA, Orphan Works, photographers, photojournalism, U.S. Copyright Office | No Comments »

Senate Judiciary Committee passes the Free Flow of Information Act of 2013

September 12th, 2013 by Alicia Calzada and tagged , , , ,

photo (2)

photo by Mickey Osterreicher/ NPPA

 

A federal shield law edged closer to a reality today as a bill which would enact a federal reporter’s privilege, The Free Flow of Information Act of 2013, passed the Senate Judiciary Committee today to move forward to the Senate floor.

A critical part of today’s hearing was an amendment, offered by Senators Diane Feinstein and Richard Durbin, which helped expand the definition of who would be covered under the law. A coalition of media groups, of which NPPA is a member, assisted with the wording.

Under the bill, a person becomes a “covered journalist” by having certain elements of journalistic intent when obtaining the relevant information and by meeting the following criteria:

– Employment: If on the relevant date the person was working (either as a staffer or independent contractor) for an entity or service that disseminates news or information. A covered entity includes, among other things, a newspaper, wire service, news agency, news website, news program, magazine, print or electronic periodical, television or radio broadcast, or motion picture.

– Experience: If the person has worked for one of the entities described above for three consecutive months in the past five years, or for an entire year during the past twenty years.

– Safety net: If for some reason, a person believes that they should be covered but they don’t fall into any of the prior categories, a judge can decide that the person is entitled to the qualified privilege in the interest of justice. This gives the judge discretion to strike a balance between the need for a limited application of the privilege and the ever changing definition of journalist.

NPPA Attorney Mickey Osterreicher attended the hearing and was pleased with the outcome. “Trying to define who is a journalist is a vexing problem. If everyone is entitled to the privilege then upon further scrutiny no one will be entitled to it. On the other hand, if  given the state of journalism these days, the media coalition felt that the previous amendment was not inclusive enough and we could not support it.. We all now fully support the bill as amended and we encourage the full senate, as well as the house, to enact it.”

Photographers are expressly included in the definition of “covered journalist.” NPPA has been instrumental in ensuring that the bill covers visual journalists and NPPAs attorneys are satisfied that it does so.

The amendment can be found at this link:

http://www.judiciary.senate.gov/legislation/mediashield/Feinstein/ALB13767.pdf

 

After Passage Left to right:  Paul Boyle, NAA - Sophia Cope, NAA -Kurt Wimmer and Curtis LeGeyt, NAB,  Jeff Kosseff, Covington & Burling, Stephanie Martz, Senator Schumer's office Photo by Mickey Osterreicher.

After Passage Left to right: Paul Boyle, NAA – Sophia Cope, NAA, Kurt Wimmer and Curtis LeGeyt, NAB, Jeff Kosseff, Covington & Burling, Stephanie Martz, Senator Schumer’s office
Photo by Mickey Osterreicher.

 

 

Posted in First Amendment, Free Flow of Information Act, Legal, photojournalism, shield law | No Comments »

NPPA Sends Letter Opposing Proposed Anti-Paparazzi Statutes in California

April 23rd, 2013 by and tagged , , , , , , , , , , , , , , , , , , ,

 *** UPDATE *** In the wake of opposition from NPPA and other groups the CA Assembly Judiciary Committee made both AB-1256 and AB-1356 “2 year bills.” A 2 year bill is one which will not move out of the policy committee this year. It is eligible to be taken up again at the beginning of the 2nd year of the biennial session thus the term “2 year bill.” In January, the Legislature will hear all bills introduced in the 1st year and those that pass muster will begin to move through the process. This is very significant because every other anti-paparazzi bill that has been introduced has flown through the Legislature. This is the first time one has been held up. While the AB-1256 and AB-1356 are not dead, this indicates the sponsors may have a difficult time getting out of Judiciary in January.

The National Press Photographers Association (NPPA) today sent a letter to California Assembly Member Richard Bloom opposing two recently filed anti-paparazzi statutes that he sponsored. The NPPA was joined by twenty-six other organizations in sending this letter, including the Associated Press Media Editors, Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society, Bloomberg News, North Jersey Media Group Inc., The New Yorker, E.W. Scripps Company, The New York Times, The Los Angeles Times, Society of Professional Journalists, Radio Television Digital News Association, The Associated Press, National Public Radio, Inc., The McClatchy Company, Reuters News, Time Inc., The Washington Post, Reporters Committee for Freedom of the Press, Picture Archive Council of America, Cox Media Group, American Society of News Editors, California Newspapers Partnership, The First Amendment Coalition, Courthouse News Service, The Newspaper Guild, Communications Workers of America, Association of Alternative Newsmedia and San Francisco Bay Media Associates.

The letter is written in opposition to proposed bill AB-1256, “An act to amend Section 1708.8 of, and to add Section 1708.9 to, the Civil Code, relating to civil law.” Proposed bill AB-1256 would expand upon California’s constructive invasion of privacy law. The letter also expresses opposition to AB-1356, “An act to amend Section 1708.7 of the Civil Code, relating to stalking,” which would enhance California’s anti-paparazzi statutes.

“We believe the creation of a civil cause of action for the “constructive invasion of privacy” is overly broad and vague and imposes greater civil penalties upon otherwise protected forms of speech and expression,” wrote Mickey Osterreicher, general counsel for NPPA. Osterreicher continued, “We are also concerned that remedies for invasion of privacy and trespass are already properly addressed by current California statutes and that statutory and punitive damages will further chill free speech and create uncertainty about liability.” “Additionally,” stated Osterreicher, “the definition of “commercial purposes” fails to distinguish those acts done for valid newsgathering purposes and in fact penalizes publishers and broadcasters along with visual journalists and members of the public with a camera.”

In the letter Osterreicher cites recent Supreme Court cases which support NPPA’s position that AB-1256 and AB-1356 are unconstitutional, including U.S. v. Stevens, 559 U.S. ___, 130 S. Ct. 1577 (2010) (holding the Animal Crush Video Prohibition Act of 2010 unconstitutional); California v. Superior Court of California (Raef), Case No. BS140861 (holding California statute AB-2479, an anti-paparazzi statute, unconstitutional); and Branzburg v. Hayes, 408 U.S. 665 (1972) (holding that “without some protection for seeking out the news, freedom of the press could be eviscerated”).

In another related matter a California assembly member withdrew his proposed “ag-gag” bill hours before it was to be considered at a scheduled hearing.

The measure, AB-343, sponsored by Jim Patterson, R-Fresno, originally imposed a “duty to report animal cruelty” that would have required “any person who willfully or knowingly photographs, records or videotapes animal cruelty . . .” to “submit all original photographs, recordings or video to local law enforcement and the owner of the animal(s) or a representative of the owner within forty eight hours of taking such photographs, recordings or video.”

NPPA and other groups opposed the bill as violating the Shield Law provisions of the California Constitution and Code of Evidence; as well as being unconstitutional under the First, Fourth, Fifth and Fourteenth Amendments in that it abridged free speech and press and constituted an unreasonable seizure lacking in due process.

“The NPPA is very proud to have the support of so many state and national organizations in its fight against these ongoing First Amendment erosions,” said NPPA President Mike Borland. “We hope that lawmakers around the country will realize that there is a better way to address their constituent’s concerns than to propose unconstitutional bills,” he added.

Posted in ag-gag, anti-paparazzi, California, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, Paparazzi, photographers, Photographers' Rights, photojournalism, Recording, Regulations limiting photography | No Comments »

NPPA Sends Recommendations to IPEC Regarding Copyright Protections

August 24th, 2012 by Advocacy Intern and tagged , , , ,

The National Press Photographers Association (NPPA) has submitted comments to the Intellectual Property Enforcement Commission (IPEC) detailing recommendations that would improve copyright protection for visual images.

The 16-page document, which was submitted following an open request for comments from IPEC, highlighted numerous measures specifically aimed at giving photographers recourse when their images where pirated.

“Most photojournalists view our profession as a calling,” the comment states.  “None really expect to become wealthy in this line of work, but most do expect to earn a fair living, support themselves and their family and contribute to society. Copyright infringement reduces that economic incentive dramatically.”

One recommendation put forth in the comments was to track takedown notices for websites hosting pirated images in order to hold search engines liable when they continue to list those infringing websites in search results.  In a move indicating that this recommendation may soon become reality, Google announced on the same day that the comment was submitted, that it would drop the search rankings of sites with multiple takedown notices.

“Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site,” the Google Search blog said.  “Sites with high numbers of removal notices may appear lower in our results. This ranking change should help users find legitimate, quality sources of content more easily.”

The NPPA comments proposed increased accountability for Internet Service Providers (ISPs) in addition to search engines.  The comments also proposed enacting statutes targeting news aggregators and their use of hyper linking, encouraging metadata schemas that would enable easier identification of image ownership, and creating a small claims solution for copyright infringement.

The comments stressed that the loss of staff positions at newspapers nationwide and the increasing copyright infringement of images by the public have undermined the value of photojournalism and made it more important than ever that photojournalists have their images protected.

“The end result of the continued devaluation of journalism, and photojournalism, is that communities suffer,” the comment states.  “Important stories on public spending, public welfare, health and safety will not be told with the vigor and thoroughness of years past.”

NPPA’s comments can be viewed at this link.

Advocacy Chair note: NPPA Intern Justice Warren contributed significantly to this effort.

Posted in blogging, copyright, Legal, Licensing, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

Connecticut Bill Would Protect Photographer’s Rights

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

I grew up in Connecticut so I am especially proud of this nugget:

A bill in the Connecticut General Assembly would provide photographers a right to sue a police officer who interferes with their right to take pictures.

The stated purpose of Proposed Bill No. 788 is “[t]o clarify the right to photograph or videotape an event.”

It calls for authorizing “a person to bring a civil action for damages against a police officer who has interfered with such person’s right to photograph or videotape an event if such person’s actions did not prevent or hinder the police officer performing his or her duties.”

The author of this bill is Senate Majority Leader Martin Looney.

Posted in Access, First Amendment, photographers, photojournalism | No Comments »

Florida Farm Bill Update

March 21st, 2011 by Alicia Calzada and tagged , , , , , , , , , , , ,

Mixed news on the Florida Farm bill (SB 1246) today. The Florida Senate Committee on Agriculture approved the bill, but before they did they passed two amendments to the language of the bill.

The first amendment changes the language of the bill so that it only applies to trespassers who enter the property, and exempts law enforcement and agents of the Department of Agriculture. The bill now only applies to someone who  “enters onto a farm or other property … produces audio or video records without the written consent of the owner or an authorized representative of the owner,”

The second amendment changes the crime from a felony to a misdemeanor.

While we still don’t like any law that targets photography, these amendments have addressed our primary concerns- that photography elevated a trespass crime to a felony, and that photography from a public place could be illegal. We will sleep better in Florida now.

As a side note, the tools available on legislative websites can be very interesting if you take a minute to poke around. Here is an analysis of the bill that specifically mentions the now-changed constitutional problems.

Posted in Access, First Amendment, Florida, Legal, photographers, photojournalism, trespass | No Comments »

Iowa Goes Too Far with Farm Bill

March 18th, 2011 by Alicia Calzada and tagged , , , , , , , , , , , , , ,

Recently we told you about a bill banning photography of farms in Florida. We have learned that there is a similar bill, prohibiting photography (among other things) of farms and crops without the permission of the owner. The Iowa bill has been compared to the Florida bill, but a quick read of the bill shows that it is far worse. To Iowa’s credit, it appears that photography from the street wouldn’t be affected, however, mere possession and distribution of undercover photography of a farm would be a crime. This elevates editors and news organizations to the status of criminals if they publish, or even possess undercover footage of farms, crops or animal facilities.

Specifically the bill states that “distribution or possession” of photographs that were illegally obtained (through violations of earlier portions of the bill). Under the proposed law, “A person is guilty of animal facility interference if the person. . . [p]ossess or distribute a record which produces an image or sound occurring at the animal facility which” is  a “reproduction of a visual or audio experience occurring at the animal facility, including but not limited to a photographic or audio medium” without the consent of the owner.

To give some perspective to the blatant unconstitutionality of this bill consider this – the only time that the Supreme Court has upheld a law that bans distribution and possession of any kind of photography it was a law against possessing and distributing child pornography. As powerful of a lobby farmers are, elevating exposes of farms to the level of child pornography is absurd and I can’t see how this would hold up. Just last year the Supreme Court ruled that a law banning possession and distribution of video of cruelty to animals was unconstitutional. See U.S. v. Stevens, 130 S.Ct. 1577 (2010). The intent of that law was to prevent animal cruelty but even it went too far (the NPPA signed an amicus brief advocating for the overturning of that bill).

The government can’t even prevent the possession and distribution of documents that put U.S. security interests at risk so it is hard to imagine how the public relations interests of farms would be considered more compelling than U.S. security interests.

Several years ago (2001), in a case called Bartnicki v. Vopper, the Supreme Court ruled that when a news organization lawfully obtained a recording, they could not be held liable for the publication of the details of the recording, even though the recording itself was illegally obtained. The Iowa law would make a news organization liable for publishing a recording, even if the news organization had nothing to do with obtaining the recording.

The NPPA has contacted lawmakers in Iowa regarding the bill.

Journalists and Photographers in Iowa should be very concerned about this bill. While it would no doubt be struck down in court, it is much easier for all of us if it never makes it to the governor’s desk.

From HF589:

Sec. 9.1(a)(2) makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the animal facility” which was taken without permission of the owner.

Sec. 14.1.b makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the crop operation which was” taken without permission of the owner.

Posted in Access, First Amendment, law, Legal, multimedia, photographers, photojournalism, trespass | 6 Comments »