Who owns video feed of Congress- You Do!

So, I am studying for finals, which means my mind often goes on short stream-of-consciousness vacations and sometimes leads to eureka moments. But usually, it just leads to semi-eureka moments. Like this one.

I have been researching the efforts to restrict coverage of high school sports by the state associations (state actors). If you take their argument to the extreme you would be accepting the notion that a city council could have an “official” photographer or videographer, and restrict other media in the manner and amount that the media broadcasts what it covers. That would be absurd, right?

Which made me think- what about C-SPAN? I have been to Congress, and there are not gaggles of live television crews there. Is the high school sports association just following the C-SPAN model? The short answer is no.

C-SPAN broadcasts the video feed of Congress, but they do not own it or assert any rights over it. The U.S. government produces the feed of Congress (which is somewhat problematic- but a different argument), and since there is no copyright in material produced by the federal government, the video feed is public domain. Neither CNN or anyone else has to pay a licensing fee to Congress, or to C-SPAN to use or broadcast the video.

To read about the video from Congress, C-SPAN and copyright, check this link.

“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.

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.

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

Bankrupt Tribune Co. paying freelancers and stringers

Despite its bankruptcy filing on Dec. 8, 2008, Tribune Company appears to be paying freelancers and stringers for work done during the bankruptcy period (before Dec. 8). A memo on the Tribune bankruptcy website states that payments should arrive in mid-January. Some payments have already gone through.

In a memo on it’s bankruptcy website, Tribune wrote,

“After a careful review of the outstanding invoices submitted by the freelancers/stringers at Tribune’s business units, the company has determined that it will be possible to begin paying these individuals for work done prior to Dec. 8, 2008.”

According to the memo, payments have a statutory limit of $10,950 per individual.

Work completed on or after December 8, 2008, is not affected by the bankruptcy filing and should be paid as normal, according to Tribune.

We have confirmed that some pre-petition invoices have already been paid.

Photographers with questions should check with the publication with which they have done the work for. Those who still have not been paid by the end of the month should file a Proof of Claim Form, available at this link:
http://chapter11.epiqsystems.com/documents.aspx?pk=7d2b7379-c031-4bdd-b0b1-9977bd9b8091

A creditors meeting is being held on January 16, 2009 at 10:00 a.m., at J. Caleb Boggs Federal Building, 844 King Street, Room 5209, Wilmington, Delaware 19801

More information on the Tribune bankruptcy, including the memo about freelancers can be found at:

http://chapter11.epiqsystems.com/tribune

Videographer Detained by Police

I thought this was worth watching. It is a terrible example of the abuse the media often faces simply while doing their jobs. In this instance, it was a school district chief. Thank goodness no charges were filed, but that doesn’t change the fact that another photographer has been hassled for doing something expressly protected by the Constitution.

(caution: expletives)

Post-election fun

Well, the election was certainly a historic moment, and a sea change in American politics, and possibly a glimpse into the future of our country (no pressure, eh).

As a journalist, elections for me are like watching the Superbowl (with longer bathroom breaks). And almost as much fun as the election itself are the after election issues and phenomena. A couple of day after notes about this one.

• A really fun thing to do on a historical day is to look at how different newspapers covered it by comparing front pages. You can do that for any given day at the newseum website. Just at first glance, California seems to have a lot of interesting pages: Bakersfield Californian, San Jose Mercury News, The Record Searchlight (which put their masthead below the photo), The Press-Democrat, just to name a few. I like the Omaha World-Herald as well. Chicago papers also were spectacular. Tell me your favorites by leaving a comment.

• The Chicago Sun-Times is actually re-starting their presses, and printing additional copies because the demand is so great. People are reportedly lining up at the gates of the paper to buy extra copies. It is a beautiful front page, and if you are from Chicago, even more so. People are already selling their copies on Ebay, bids are up to $20.

• Convicted Senator Ted Stevens, of Alaska looks like he is winning, and won’t voluntarily step down. If Stevens has to be ousted by his fellow senators, it could be dramatic. Finally, if he wins, and his position is later vacant, there is speculation that Sarah Palin will go for the seat. Also dramatic.

• Now that Sen. Joe Liberman, a democrat-turned-independent senator from my home state of Connecticut, is no longer the man who tips the senate in the democrats favor, his rift with the party will get wider. He actively campaigned for McCain, and the democrats no longer need his support to get a majority vote (which they weren’t getting from him on some issues anyway). It remains to be seen if this incredibly influential politician who was a vice presidential candidate on the Gore ticket, will fizzle.

Charges dropped against photographer

In another “bully the photographer” case…

A good friend of mine, Tony Overman (a respected and experienced journalists who has testified before Congress on behalf of the profession), was arrested while covering a fire scene recently. Basically, he got into a verbal argument with a police officer. The officer got in his face, their noses touched. The officer accused Tony of assaulting him, pushed him to the ground, arrested him, and twisted his arm. Tony’s wrist was sprained. He was charged with assaulting a police officer- basically for talking back.

Fortunately, Tony knew exactly how to handle this, from years of advocating for other photographers. He has a media lawyer on his speed dial.

The evidence in this case spoke for itself. None of the other police officers or firefighters on the scene saw the alleged assault. The officer also had no reported injuries, despite his claim that Tony hit him in the nose with his forehead.

The charges were dropped yesterday.

I have been thinking about something lately. I have been wondering if there is any other profession where the professionals risk arrest for doing their job every day. I can’t think of one, other than journalist (and maybe drug dealer)

I am relieved that the charges against Tony were dropped, but in general, I am so sad about this reality…

• Story in The Olympian •• NPPA Story •