Great piece on Nppa.org about ethical issues related to photography this week as the bin Laden story evolves. Big decisions about gruesome images and staged photo ops.
Read about it here:
http://www.nppa.org/news_and_events/news/2011/05/binladen.html
I have been following an exciting bill in the Connecticut legislature that for explicitly takes steps to protect photographers rights to make pictures.
In the face of recent efforts by other states to arrest photographers and charge them with violating wiretapping laws Connecticut’s S.B. No. 1206 is refreshing.
Contrary to some reports, the bill does not give photographers the right to take pictures in public- that right already exists. What the bill does is give photographers a right to sue police who interfere with their right to photograph. In many cases, you can only bring a lawsuit if the suit is authorized. A violation of a civil right is generally an appropriate grounds for suit, and in fact many photographers across the country have received settlements from police departments after being arrested unjustly. However, having an explicit cause of action will make it easier for photographers to bring suit.
In my opinion, it is not the possibility of a lawsuit that would make this bill favorable. Sure it is nice to get something for your trouble. But what matters here is the pressure that this would put on police departments to make sure that their officers respect the First Amendment and leave photographers alone.
The bill is short enough that I can post the entire version here:
Any peace officer, as defined in section 53a-3 of the general statutes, who interferes with a person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such officer’s duties shall be liable to such person in an action at law, suit in equity or other proper proceeding for redress, provided such person, while taking such image, did not obstruct or hinder any peace officer in the performance of such officer’s duties.
According to the Hartford Courant an amendment has been added that exempts officers “if the officer had a reasonable belief it would interfere with an investigation, violate the privacy of a victim or impact the public’s safety.” I’m hoping to get a copy of the amended text- it is not currently posted on the General Assembly website. An amendment like this could take away the teeth of the law or even make things worse if poorly written.
The New York Times is broadcasting the State of the Union on the front page of its website as I write this. It is a lovely thing to watch, and it is a clear example of how newspapers have changed- in what they can do and how they can deliver the news.
If the Wisconsin Interscholastic Athletic Association (WIAA) was in charge of the State of the Union, the New York Times would not be web-casting the State of the Union, in it’s entirety. Instead they would be limited to two minutes worth of highlight footage, with no live blogging allowed. Sound absurd? That is exactly what WIAA claims it can do with its high school championship games. A federal judge agreed with them and the case is now under appeal. WIAA is a state actor, and if you say that WIAA can restrict coverage of its events, where is the line drawn?
There were oral arguments on Friday in the United States Court of Appeals for the Seventh Circuit in the WIAA v. Gannett case. You may remember this case originated a couple of years ago when a Wisconsin newspaper webcast several high school football tournaments against the wishes of the tournament organizers, the Wisconsin Interscholastic Athletic Association. The WIAA sued, initially in state court, seeking a declaration that it had broad rights to own the descriptions and depictions of the games. The case was moved to federal court and the complaint was changed to involve fewer claims.
Currently the primary issue involves whether or not the WIAA can contract with a private company to exclusively license the rights to broadcast the entire game (beyond just highlights). WIAA is a “state actor” which means that in effect, they are like the government, and they cannot restrict speech any more than a city or state government could.
A panel of three judges began by peppering the newspaper’s attorney, Robert Dreps, with hypothetical questions about whether or not a school could restrict coverage related to school plays, or operas, which have copyright protections. Dreps explained how previous courts have ruled that there are no copyright protections in athletic competitions. The judges also raised questions about whether or not the case should ever have been moved to federal court. At one point one of the judges compared the broadcast of the games to a broadcast of the oral arguments themselves. In addition, the issue of whether a ruling in favor of the newspapers would affect broadcast agreements in college basketball games was raised.
These issues are not simple, and because of that, the debate is fascinating. If you have time, it lasts less than an hour. At play are cross-section of many issues, including First Amendment, copyright, and internet law. News organizations all over the country should be paying attention to this case and its outcome.
A recording of the oral arguments can be heard here and there is an article about the original case here.
(editor’s note: this is a cross-post with my NPPA Advocacy blog)
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.
The news industry knows the impact of multimedia presentations. So do prosecutors and district attorneys.
One controversy brewing in the legal industry is the use of multimedia presentations during the penalty phase of a trial. Typically, in a murder case, those who knew the victim can talk about that person, so that the jury gets a sense of the loss to society before they decide the penalty. Often, they will also show pictures and in some cases, a slide show or multimedia presentation.
Such was the case in Kelly v. California. Douglas Kelly was convicted of killing a 19-year-old woman, Sara Weir. During the penalty phase, a 20-minute multimedia presentation was played, showing pictures and video of the victim throughout her life, set to music by Enya, with her mother’s voice narrating. The defendant got the death penalty. His attorneys appealed, claiming that the videotape was unduly emotional.
Sometimes such multimedia presentations as evidence is not permitted, and the California Supreme Court mentioned cases where they have excluded such presentations. Those exclusions were because the videotapes were irrelevant, and in one case involved a paid actor.
But the videotape in Kelly was ruled to be acceptable by the California Supreme Court. Even though the soft music was probably overboard, the California Supreme Court ruled that in light of the trial as a whole, it was not enough to have a significant impact on the jury as a whole.
The U.S. Supreme Court refused to review the case on further appeal. But two of the nine justices wrote strong statements urging that the high court should have granted review (it takes four justices to agree for the court to accept a petition).
Justice Stevens said, “when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming.”
He added that “their primary, if not sole, effect was to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the capital defendants”
Justice Breyer, who called the presentation tasteful and “above all, moving,” said, “any decision to impose the death sentence must be… based on reason rather than caprice or emotion,” thought that the court should have reviewed the case to help lower courts create better guidelines.
Want to decide for yourself? The U.S. Supreme Court has posted the video:
http://www.supremecourtus.gov/opinions/video/kelly_v_california.html
My opinion… The circumstances of the crime were such that this presentation could have been done in a far more “overdone” manner. The mother never seemed to choke up and there was not a big build up at the end that would really knock you out. Yeah, it’s emotional, but I can’t imagine how the story of a woman who was murdered, told by her mother, could be presented in a way that is not emotional.
I have covered many a murder trial, and they all make you want to go home and hug the people you love. They make you cry. Period.
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)
This should be interesting:
Cuss words were uttered during an awards show. Because the FCC guidelines regulate profanity over the airwaves (and a very vocal group complained), the FCC fined the network.
I’m sure lawyers everywhere are waiting to see- will the offending words be repeated before the Court? Will they be repeated during questioning by the justices (not likely)? If the words are profane, then will C-Span run into trouble when it broadcasts the audio recording of the oral arguments? If it is unfit for broadcast, will it be unfit for “the nine.”
And how do you argue about the use of a vulgar word in front of the Supreme Court of the United States, without mentioning the words, which may be interpreted as a lack of respect by the justice? That’s what makes it fun!
http://www.broadcastingcable.com/article/CA6608206.html
This issue was famously before the court 30 years ago, in FCC v. Pacifica. The case, tried in the 1978, was about a broadcast of a George Carlin skit about “seven dirty words” that you cannot broadcast. The skit was broadcast, the radio station was spanked, and a court case ensued. The result was a Supreme Court decision stating that the First Amendment does not protect vulgar and offensive speech from regulation by the FCC
Interestingly, the entire judicial opinion did not include any of the allegedly offensive words (but the transcript, in the appendix, was full of them).
Local District Court Judge Bert Richardson (who loves photography) is interviewed in this piece about a new sports photography exhibit at the San Antonio Museum of Art, called Visions of Victory.
I am always surprised at the number of lawyers and legal professionals who are also photographers or fans of photography.
Just finished with the NPPA Board meeting, which was held in conjunction with the Multimedia Immersion Workshop and the Convergence Workshop. So much to say, but I will try to narrow it down to a few comments.
– First, check out this great story that Billy found and shot during the immersion. I am so lucky that I get to share my life with this guy and be inspired by him.
– I moderated a panel during the Multimedia Immersion Workshop on ethics and law in multimedia. Some interesting issues discussed included not just the legality of using music in multimedia presentations but also the general effects on the piece- does it detract? does it add? does it give the piece a mood that it didn’t really have? One of the most interesting points mentioned was how a popular music piece might be added to evoke a certain emotion, but it could actually have a different effect because the same piece of music means different things to different people.
– The NPPA Board budgeted to continue funding travel for the advocacy committee which will enable us to continue our work meeting with capitol hill staff and working with Congress when appropriate. Major issues that we are working on for the year ahead include Federal Shield Law, Orphan Works, Conflicts with High School Sports Associations as well as Pro sports associations, and proposed changes to the permit requirements for photographers at national parks. And of course, continued individual needs.
– As my term as “immediate past president” expired on Friday, I am no longer on the NPPA board. I was a little sad, as it has meant so much to me, but I am thrilled at the new leaders emerging and I am excited about the future for them. I am amazed at all that I have been able to accomplish and all that I have learned about myself. It is really true that when volunteering, you get what you give. Congrats to new President Bob Carey, Vice President Sean Elliot, Secretary Denise McGill, and EC Board Rep Tom Costello. Tony Overman becomes Immediate Past President and Jim Sulley remains as the treasurer. It has been a few years since there was such a large change on the EC- but these are good folks who will do wonderful things.
– Would you believe that during the Canon Shoot-Out, one of the NPPA Board members was harassed by Louisville police for taking pictures on a public street! A tourist destination (4th Street) no less. Of course you would believe it. It has happened to all of us. But it was kind of cool to be able to respond so quickly and in person. NPPA Attorney Mickey Osterreicher spoke to the local PIO and the manager of 4th street and both came to their senses. There was some talk of a mass photo party on 4th street but since the police backed down, it lost steam. For a while, Tony Overman was jokingly planning a WTO type protest and I was to be “the wailer.” Mickey is an amazing gift to the NPPA.
– Mickey Osterreicher also led a workshop session on photography and the law, which was well attended. It is clear that photographers are thinking more and more about legal issues. Hot topics discussed included trespass, especially in malls and private homes, privacy issues, confrontations with police and how to handle it and copyright. Some attendees asked if the NPPA was considering increasing its presence on capitol hill to include professional lobbyists, etc. NPPA doesn’t have the budget to do that this year, but we are accomplishing quite a bit. We are participating in several national legislative issues and continue to reach out in various ways and be as much a part of issues as we can. Considering how our advocacy efforts are growing at such an exponential rate, I wouldn’t be surprised if we achieve that dream several years down the road. It just requires support of the industry.
– We were invited to a reception at the law offices of Paul Paletti, Jr., a very cool lawyer here in Louisville who has transformed his office into a photo gallery with work from some of the most amazing photographers, both contemporary, like James Nachtwey and legendary, like Edward Weston and Alfred Stieglitz. A very cool gallery and a perfect vision of what I would like to do with a future practice.
As you can see, it has been quite a week. I will try to break down some of these topics and address them in future posts.
Ciao!
NPPA Photojournalism News Legal News from ABA
Photo Blawg 
Comments