Photographers should be paying attention to the Supreme Court this week…
Oral arguments were heard today in Reed Elsevier v. Muchnick. This case is connected to our old friend Tasini v. New York Times, which some say started the whole rights grabbing trends of the modern day newspaper contract. While this case won’t really have as much of an impact on photographers, it is interesting because of the connection. It involves the authority of the court over copyright cases and settlements when the rights holders haven’t registered their copyright. It also involves an enormous class of journalists. Here is a summary of the oral arguments (note to self: research why people keep hyphenating “freelancer”) and here is a transcript of the oral arguments.
If the court rules that a federal court cannot approve a settlement involving rights-holders who have not registered, it seems inevitable that this will affect the Google Books settlement.
The Dog-fight Video Case
In another case that is important to photographers, the U.S. Supreme Court heard oral arguments Tuesday about whether or not a law that bans visual depictions of cruelty to animals is a violation of the First Amendment.
U.S. v. Stevens is the first case ever to be prosecuted under a federal law that bans any “depiction of animal cruelty” if such cruelty is illegal in the place where the depiction is created, sold or possessed.
It has been many years since the Court found that the government interest in preventing child pornography was so great that it overrode any First Amendment rights of the child pornographer, a rather appropriate finding. By making the expressive act illegal, the motive for the abuse is diminished. Child pornography involves abuse of a child and the photography itself is abusive. The law is clearly narrowly tailored and serves a compelling government interest.
This law is not so well orchestrated. For example, the defedant, Stevens, was not involved in any animal abuse, he merely edited together footage that he obtained from others.
While well intentioned (many attacks on the First Amendment are), I think this law is certain to be struck down. First of all, I don’t believe that our government truly has a compelling interest in preventing cruelty to animals. If it did, much of the way our nation produces meat would be illegal (yes, I am a vegetarian). Second, the law is in no way narrowly tailored. There are many possibilities of perfectly legal activity that could get a person caught up in this law. And there are loopholes that would make illegal a video or photograph of something that was legal where it occurred (say bullfighting in Spain). I once photographed a ritual sacrifice of a sea turtle in a Fijian village. It was gross. It was brutal and cruel. But it was important to document. Those pictures could get me in trouble with the feds under this law.
If you don’t believe me, just take a look at the list of hypotheticals the justices posed to the attorneys in this case. The article in the New York Times says it all.
An article about the NPPA signing an amicus brief urging the court to hold the law unconstitutional is here.
One of my favorite things to listen to is a Nina Totenberg report on Supreme Court arguments. Her review of this weeks oral arguments is available here.