A Law Favoring Photographers

21 04 2011

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.

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Iowa Law Would Criminalize Publishing Farm Exposes

18 03 2011

Author’s Note: This is a cross- post from my NPPA Advocacy blog.

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.





Updates

6 06 2010

A couple of nuggets:

This blog piece highlights the most famous newspaper in Hollywood, used for years in Hollywood as a prop.
http://www.slashfilm.com/2010/06/04/lol-the-reoccurring-prop-newspaper/

If you are an ethics fan, like many journalists are, this video, about “The Prisoner’s Dilemma.” It’s an extraordinary piece of journalism, as well as a fascinating look at the legal system.

http://video.nytimes.com/video/2010/06/04/nyregion/1247467961918/the-innocent-prisoner-s-dilemma.html





Is your Internship Illegal?

7 04 2010

You need an internship. Companies love having interns because it lightens the work load, they get to nurture and identify young talent and it supports the industry to train future photographers.

Tea pickin' is probably not eligible for unpaid internships. Photo by Alicia Wagner Calzada

There is an interesting article in the New York Times about the expanding trend of unpaid internships and the reality that some unpaid internships violate federal wage laws.

I also found a useful evaluation at this link.

One of the big concerns is that unpaid internships are being used to replace paid workers in this economic recession. This is certainly true in the photojournalism world.

Some states require that an intern receive school credit in order to be eligible as an unpaid intern.

The Department of Labor has provided a set of guidelines to determine whether someone is a trainee, entitled to not being paid (this is relevant for Fair Labor Standards Act- i.e., whether or not minimum wage laws are being violated).

There is also a report by the Economic Policy Insitute on the trends and need for reform for internships.

According to the DOL, there are six factors used for determining if someone is an employee or trainee:

1. The training, even though it includes actual operation of the facilities of the
employer, is similar to what would be given in a vocational school or academic
educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close
observation;
4. The employer that provides the training derives no immediate advantage from the
activities of the trainees, and on occasion the employer’s operations may actually
be impeded;
5. The trainees are not necessarily entitled to a job at the conclusion of the training
period; and
6. The employer and the trainees understand that the trainees are not entitled to
wages for the time spent in training.

“If all of the factors listed above are met, then the worker is a “trainee”, an employment
relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker.”

This does not affect non-profits using volunteers.

You may think this is overkill when you have a student willing to work for free in exchange for valuable experience, but this is extra important for photographers because the consideration of whether someone is an employee is also important for consideration of who owns the copyright. Also if there is an on-the-job injury or a sexual discrimination case, employment status is extremely important.





It’s photo week at the Supreme Court of the United States

7 10 2009

071107-scotus-awc-031Photographers should be paying attention to the Supreme Court this week…

Tasini continued…

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.

The transcript, full of hypotheticals, is here.

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.





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

8 06 2009

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).






The copyright of “Happy Birthday”

7 05 2009
210 POSH awc

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.