“Don’t shoot me! (while I’m in handcuffs)”

A couple of weeks ago, a defendent in Long Island, NY, actually had the nerve to ask a federal judge to bar the media from publishing photographs of him in handcuffs. The defendant, former legislatorRoger Corbin, was arrested on federal charges of tax evasion.

Among the things that Corbin asked for was an end to the “perp walk,” specifically:

(A) permanently enjoining, restraining, and stopping Newsday, News 12 and the United States Government from issuing press releases, mug shots or “perp walk” photos, videos or images of the defendant in handcuffs; and

(B) permanently enjoining the United States Government from conducting “perp walks” or issuing other information of the defendant aside from pedigree information and except as directed by the Court;

Needless to say, the motion to prevent perp walks, for either Corbin, or other defendants, was denied, as was the motion to stop publication of the images of Corbin in handcuffs. But as is the case with most rulings, the judge cannot just say “no.” He has to explain it.  The case goes through all of the motions of why, and for that reason it is interesting reading to anyone who wants to know the law behind perp walks or behind judicial restraint and the push-pull of fair trial vs. free press.

I thought it was interesting that the judge found the perp walk issue moot because it had already happened. Federal courts can only rule on “cases in controversy,” in other words, if there was about to be a perp walk, there would be a controversy, but since the time had passed, there was no “justiciable” issue. I was surprised by this ruling, even though the judge had good precedent. There are exceptions to this rule when the issue is something that will be repeated, and it ordinarily begins and ends before a case can reasonably be brought. This was the reasoning behind some desegregation cases, when the child had already graduated.

Also interesting to me, was that in Corbin’s efforts to stop the police from releasing information and photos to the media, the judge ruled that the media had rights because as the recipients to the information, their First Amendment rights were invoked. In other words, when it comes to restricting information, both the person communicating the information AND the recipient have first amendment rights. To quote a Supreme Court case, “W]here  [*29] a willing speaker exists, … the protection afforded is to the communication, to its source and its recipients both.” (case can be found at 425 U.S. 748). The fact that the recipient has as much right to recieve the communication as the speaker has to give it is not something that I was aware of. It is definitely useful.

The judge’s ruling on the motions can be found at United States v. Corbin, 2009 U.S. Dist. LEXIS 46241 (E.D.N.Y. June 1, 2009).

Some “factoids” for you

For a little pre-summer fun. Check out this link.

Not a lot of bells and whistles, but kind of amusing, to see the errors we make in common phrases.

This fits with photoblawg because whether you are a journalist or a lawyer, your communication skills make all the difference in getting your point across.

I myself will be checking back with this Website (yes, it is supposed to be capitalized):

http://www.wsu.edu/~brians/errors/errors.html#errors

One that I always struggle with: judgment

Roxana Saberi reportedly released

Roxana Saberi has reportedly been released from prison! The Iranian-American journalist, who had been convicted of spying and jailed in Iran with a sentence of 8 years, was released when an appeals court, after pressure from the president of Iran, agreed with her defense that she could not be “cooperating with a hostile state” if there was “no hostiliy” between the U.S. and Iran. Her sentence was reduced and suspended.

Contributing to this victory: a change in tone between the new administration and Iran, upcoming Iranian elections, pressure from the U.S. president and secretary of state, and pressure from journalism groups.

Three cheers for some wonderful news on a Monday morning.

The copyright of “Happy Birthday”

Happy Birthday Ladies! Did you get a performance license for that song?

Did you know that someone claims ownership to the copyright to the song “Happy Birthday to You”?

It was referenced in the dissent of a well-known copyright case, Eldred v. Ashcroft.

In honor of the end of law school finals, here is some light summer reading for you.

A legal scholar did some digging and found out some interesting facts. Digging deeply into the authorship of the lyrics and the melody, technical legal issues, evidentiary issues and policy issues, the author provides a logical look at the facts of a song whose music was written in 1893, but was combined with lyrics and published in 1935.

So what is the answer- as in many legal issues, it’s complicated. I won’t spoil the ending for you, you can read the paper yourself. Reading like a soap opera for copyright nerds like me, it is not only a very interesting tale, but a great look at the history of copyright law.

Ultimately, until tested in court, we won’t have a definitive answer, and no one seems likely to challenge it (the article addresses why). In the mean time, the song earns over $2 million in licensing revenue every year.

Find the article at this link.

Google Books deadline extended

This post wast supposed to be a reminder about the opt-out deadline. However, I have read that the deadline has been extended to Sept. 4, and the hearing rescheduled for October 7. Of course that is no excuse for putting off your decision to the next last minute.

I am not advocating opting out or opting in. What I am advocating is reading the relevant information and making an actual decision. This is not like other class action settlments where all you lose is $5 from CD manufacurers. There are serious rights on the line here.

See my earlier post, or for that matter, google it!

After taxes- Google books deadline looms

As you finish up with your tax deadline, another important deadline is looming.

The Google Book settlement with the Author’s Guild has May 5 opt out deadline. That is a less than 3 weeks.

What does this mean to you?

Well, if you want to be a part of the settlement, you don’t have to do anything. But you need to make a couple of decisions.

1) Your first decision-does this affect me as a photographer? It may or it may not. According to the Google Settlement Page FAQ’s:

The settlement covers:

“all persons and entities that, as of January 5, 2009, own a U.S. copyright interest in one or more Books or Inserts that are “implicated by a use” authorized by the Settlement.”

“Photographs, illustrations, maps, paintings and other pictorial works in Books are covered by the Settlement ONLY when either (a) the U.S. copyright interest in the pictorial work is owned by a person who is also a copyright owner of the Book containing the pictorial work or (b) the pictorial work is an illustration in a children’s Book (see below). For example, if a copyright owner of a Book on photography is also a copyright owner of photographs in that Book, those photographs are covered by the Settlement. However, the Settlement does not cover any other photographs in the Book whose copyright is owned only by persons who are not copyright owners of the Book. Similarly, if a history Book contains a series of maps where the copyrights to those maps are owned only by persons other than a copyright owner of that history Book, those maps are not covered by the Settlement.”

2) If you believe you are covered by the settlement, you have a second decision. Do you want to participate?

How do you decide if you like the deal or not. Well, you have to know what google is authorized to do under the settlement AND what benefits you will receive. According to the Google Settlements FAQ page (run by Google), the following applies:

1. “What is Google Authorized to do Under the Settlement?
   Under the Settlement, Rightsholders authorize Google, on a non-exclusive basis, to:

   Cash Payments. Google will pay a minimum of $45 million to compensate Rightsholders whose works Google has scanned without permission as of May 5, 2009. Rightsholders of works Google has scanned without permission as of May 5, 2009 are eligible for Cash Payments, which will be at least $60 per Principal Work, $15 per Entire Insert, and $5 per Partial Insert. A “Principal Work” is the main work in a Book (that is, the part of the Book that does not include forewords, afterwards, footnotes and other material).”

   • Continue to digitize Books and Inserts
   • Sell subscriptions to an electronic Books database to institutions;
   • Sell online access to individual Books;
   • Sell advertising on pages from Books;
   • Display portions of Book in a “preview” format to encourage sales of online access to Books;
   • Display Snippets from Books; and
   • Display bibliographic information from Books.

2. What Benefits Are the Rightsholders Receiving from the Settlement?

   63% of Revenues Earned in Google Book Search. Google will pay rightsholders 63% of all revenues Google receives from the commercial uses Google makes of the Books.

   Establishment of the Book Rights Registry. Google will pay $34.5 million to establish and maintain a Book Rights Registry, to locate rightsholders and create a database of their contact information and copyright interests in Books and Inserts, and to collect revenues from Google and distribute those revenues to rightsholders, and for notice and settlement administration costs.

   Right to Manage Books and Inserts in Google Book Search. Rightsholders will have the right to determine whether and to what extent Google may use their copyrighted writings.

My concerns about the settlement:

The Payment: $60 cash payment to scan your book and make it available online is not very much, compared to the purchases of the book which you will lose. While author’s will supposedly get 67% of the profits, it is not clear how they will determine who gets those profits or where the money from true orphan books will end up. Will they track the books that are read on their online service and distribute to those authors? It is important that there be a procedure in place that connects the use of each individual book with the author.

The Book Rights Registry: This should benefit creators. It is important that there be safeguards in the registry for privacy reasons. However, one of the main obstacles to paying creators is finding them, so this will definitely help.

What price will the the access be: This appears to be the million dollar question. While libraries are concerned about this number being too high (it currently costs $50 to access some law books on Lexis Nexis), author’s should be concerned about this number being too low. If someone won’t buy my book because they can get it online for $2, maybe I am losing a lot of money. Then again, maybe that is more than I would have gotten from a hard-copy sale. And maybe, like iTunes, more people will by my book because it cost less, and I will ultimately profit. But it is hard for an author to make that decision without more facts.

Right to Manage Books: This is what makes this settlement acceptable to me. If I can determine to what extent Google can use my copyrighted work, I control my work. This means if it is driving down my profit, I can adapt. But clarity on the amount of rights you can exercise would be helpful.

Magazines: Read my post below about magazines. While this settlement claims to be only about books, I am deeply concerned that similar online distribution of magazines is being accomplished by Google.

For more information:

Article about who is opposed to the settlement (includes a quote from Vic Perlman).

Blog post from the Advertising Photographers of America.

Article on Author’s Link.

This New York Times article discusses some of the philosophical objections to the settlement, including concerns that Google is creating a monopoly of access to “orphan” books.

The Author’s Guild, which is one of the organizations that initiated the suit. Keep in mind that they helped shape the terms of the settlement, so they believe it is fair. They have a large number of resources on their settlement page.

Google also has a settlement page.

I am a strong believer in the mantra “consider the source,” so while these resources may be accruate, you should seek out information and evaluation from a third party that is representative of creators.

All right, that should give you enough reading material until the tax extension deadline (yes, I filed for an extension for like the 5th year in a row).

Cheerio! Alicia

Magazines on Google

“A Photo Editor” blogger Rob Haggart reports that Rodale, which is a magazine publisher,  is publishing back issues of the magazine on Google. They are available through Google Book Search. Here is a post about it on Google as well.

Haggart brings up the amusing point of what to do with magazines that basically write the same articles every month.

But he also brings up the question of whether the magazine is violating copyright a/la New York Times v. Tasini, which ruled that publishers did not have a right to relicense content to database without the contributor’s consent. (If in fact this is an arrangement between the publishers and google, and not an independent act by google)

Google Book search- includes magazines now

My opinion (as a student of the law, not as a judge or lawyer) is that this is permissible, based on the Tasini opinion, which by coincidence, we read last week in my copyright course.

The big difference between Google magazines and Tasini is that Tasini involved a large database where the articles could appear along with completely unrelated articles or alone. They didn’t appear in context, and so they didn’t qualify as permissible revisions.

In the current situation, the articles and photographs appear in context and I think they would be considered permissible revisions. Which is not to say that Google can post them without the magazine’s consent, but only that the magazines can authorize Google to post them without the photographer’s consent.

From Tasini:

“A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only “as part of” any (or all) of three categories of collective works:

(a) “that collective work” to which the author contributed her work,

(b) “any revision of that collective work,” or

(c) “any later collective work in the same series.”

In accord with Congress’ prescription, a “publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.” H. R. Rep. 122-123″

I think if a photographer took this case to court, it would look more like Greenberg v. National Geographic. In that case, a court ruled in favor of the publisher’s right to republish a digital “revision” of the magazine without permission of the photographer. The magazine pages on the CD ROMs in the NGS case were presented in their original context, whereas the Tasini articles in the Lexis and other databases were not. Seems like a small difference, but it makes all the difference.

A good way to distinguish the two is to think about the good old microfilm days. If it looks like microfilm (you have to look at the entire page in context) then it is more like the Greenberg case. The Google Magazine search looks more like microfilm.

Keep in mind that each case has the potential to be different based on the facts, and a contractual agreement between a magazine and a photographer may change the equation. Also, if this is not an arrangement with the publishers, but is instead google going out on it’s own, it is a different kind of trouble.

Ironically, this google magazine search could be a major blow to Lexis Nexis. Why pay LN fees to search magazines when you can do it for free on Google.

Reminder: this should not be considered legal advice. See disclaimer.

Colbert on NPPA and Photography in Train Stations

For years, I have been involved in fighting attempts to ban photography in public places like train stations. Yet photographers continue to be harassed and we continue to have to make a fuss.

Recently, a case caught the attention of the Colbert Report and the following video ran last night (Feb. 2). The absurdity of our point comes across clear as day. The shout out to NPPA (and the bloody lettering to go with it) made my day.

The good news is that NPPA has gotten Amtrak to agree to review and update its police guidelines in regards to photography. But that, of course is not as funny as what happened to set it all off.

more about “Colbert Reports on Photography in Tra…“, posted with vodpod

Why your trademark is important and an interesting story to go with it.

I recently read a case about a company called Polaris Pictures Corp. This is not to be confused with Polaris Images, the reputable picture agency. But when I first heard of this case, that was the first thing I wondered. This is why trademark law is important.

There is a good reason why you wouldn’t want to confuse the two companies. First of all, PPC was barely a business at all. At best, they had an interest in some screenplays. You don’t want your clients accidentally calling this company.

Secondly, the company, was involved in some rather dramatic alleged scams involving insurance and a million dollar yacht. Not good pr to be associated with.

There is more than one case involving this company, but this one has a pretty good summary . It reads like a daytime drama.

This case is also an example of why I love it when an opinion is written by someone with good writing skills. Being a good writer is very important being a good lawyer and judge. The “truth is better than fiction” quality of this case would be lost on the wrong writer.

Magazine Death Pool

A magazine on the list at www.magazinedeathpool.com

Well, just to make us newspaper fans feel better, there is a blog called the Magazine Death Pool which is tracking the various magazine closings.

Some of these truly look like they deserved to go, but some are a bit of a surprise.

The blog itself seems to have lasted quite a while