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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Cameras and Federal Courts

17 04 2011

I have for you today some long overdue commentary on last year’s case of  Hollingsworth v. Perry,  130 S. Ct. 705 (2010), the ruling by the Supreme Court of the United States regarding cameras in federal courts. As the Court blocked an attempt by a federal court in California to broadcast the trial to other courthouses throughout the country, it was seen as a blow to the efforts to bring cameras into federal courts. It was indeed a loss, but there were many positive elements to it.

First, the Court explicitly said that it was not ruling on the issue of cameras in the courtroom, rather the ruling was limited to the fact that the comment period for changing the local rules was not long enough (thus avoiding the constitutional question). This means it lives to fight another day.

Second, the decision was 5 to 4, which means that 4 of the justices would have allowed it to proceed, and if only one of the justices in the majority truly voted based on the rule-making violation, we are in good shape.

Third, I noticed something very interesting, and I wonder if anyone else has picked up on it. The Court explicitly and implicitly approved of, the presence of the audio-visual equipment itself in the courtroom when it stated, “[w]e therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses.” Hollingsworth v. Perry, 130 S. Ct. 705, 709 (2010).

In fact, the Court cited the existing rules of the Ninth Circuit, (pre-experiment) which allow the “Electronic transmittal of courtroom proceedings and presentation of evidence within the confines of the  courthouse” Id at 710-711.

The majority also discusses approvingly the limited broadcast of the Oklahoma City Bombing case, without mention of the impact of the cameras in the actual courtroom, as well as the statute: 42 USCS § 10608, which opens the door to closed-circuit viewing of criminal trials. Of course closed- circuit viewing of trials cannot occur without a video camera.

In the temporary stay that it issued two days earlier, the Court explicitly referred to transmissions within the same courthouse when it stayed the broadcast “except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held.” Hollingsworth v. Perry, 175 L. Ed. 2d 878 (2010).

This tells us that the issue for the Supreme Court is no longer the presence of the technology as it was 45 years ago in Estes v. Texas. It is the impact of what will happen outside the courtroom. The great thing about limiting the issue to the impact of the broadcast is that there is little teeth in that argument. The Court has been loath to restrict the publication of truthful information obtained in the courthouse, and has outright rejected many efforts to limit publication of courthouse records and testimony, even when extremely sensitive facts were at stake.





The State of the Union Live Web Feed- Are you listening Seventh Circuit?

25 01 2011

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?





Can the Media be Restricted from Broadcasting High School Athletic Events in their entirety: Oral Arguments in the Seventh Circuit.

16 01 2011

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)





Elegant Argument for Cameras in the Supreme Court

2 07 2010

This week, the broadcast of the Elena Kagan confirmation hearings provided a stark contrast to the dramatic events actually inside the Court on Monday. What came of it is one of the most elegant arguments for cameras in the Supreme Court that I have ever read.

Check out the article here.





Ban on Photography of Animal Cruelty Struck Down

20 04 2010

Two important pieces of legal news for photographers today.

U.S. v. Stevens

The Supreme Court today overturned a law that made photographs of animal cruelty illegal. The defendant, Stevens, was the first to be convicted under a federal law that banned the creation, sale, or possession of a depiction of animal cruelty.

Much like child pornography laws, the law was designed to target the market for videos of animal cruelty, because it is often difficult to determine the person who committed the underlying cruel acts. Designed to allow law enforcement to go after “crush” videos, which appeal to a disgusting fetish for the crushing of small animals, the law in this case was applied to a video of dog fights.

The problem with the law, as evidenced by the fact that it was used against a dog fight video (not that I am any fan of that either), was that it was way too broad, and could potentially impact journalists, as well as others exercising their First Amendment rights. There was an exception for any depiction that has “serious journalistic value,” but the term “serious” excluded too much, and there was no exception for entertainment. The NPPA joined the Reporters Committee for Freedom of the Press in filing an amicus brief.

The Supreme Court ruled that the law explicitly punished expression based on the content. Although speech restrictions based on content are allowed in a few exceptions, namely, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, and some specific narrowly tailored areas, this was not one of them, and the court declined to create a new category.

In attempting to bring videos of animal cruelty to the level of child pornography, the government proposed the following test for adding new areas of exception to the First Amendment : “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

Justice Roberts responded, “As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.” The court declined to carve out a new exception to the First Amendment for animal cruelty.

Finding that the law was far too much of a limitation on the First Amendment, Roberts said, “We read §48 to create a criminal prohibition of alarming breadth.”

There are some great lines in the opinion, including, “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

Animal rights fans, take heart. The court did “not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.”

You can read the entire opinion, and the dissent, here. There is also a good analysis of the ruling on the SCOTUS blog.

Ken Light v. Current TV

Also important for photographers is the ongoing case of Ken Light, a San Francisco photographer who took Current TV to small claims court for “unfair competition,” after they violated his copyright. Light originally won the case, but Current TV appealed it and the court threw the case out. The reason- it was basically a copyright violation and small claims courts do not have jurisdiction over copyright, only federal court does.

I am aware of some cases where a copyright violation was successfully taken to small claims court as a breach of contract or failure to pay an invoice, but it is always a risk as the federal courts have exclusive jurisdiction over copyright claims.

There is a wonderful story about the case, and the legal history of “in-line linking” on the NPPA website. I recommend it.

UPDATE: The New York Times calls the ruling a “major and muscular First Amendment ruling





Who owns video feed of Congress- You Do!

29 11 2009

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.