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July 24th, 2014

AP Photographer’s Killer Given Death Sentence in Kabul

Anja Niedringhaus in 2005. ©Associated Press/Peter Dejong

Anja Niedringhaus in 2005. ©Associated Press/Peter Dejong

The Afghan police officer charged with killing Associated Press photographer Anja Niedringhaus and wounding veteran AP correspondent Kathy Gannon last April has been sentenced to death by a panel of judges in Kabul, the Associated Press has reported.

Niedringhaus and Gannon were traveling under the protection of Afghan forces with a convoy of election workers  near the border of Pakistan when the police officer approached them, yelled “Allahu Akbar” — God is Great — and opened fire on them with an AK-47 rifle.

The officer, identified in press reports as Naqibullah, was sentenced Tuesday. His defense attorney argued that he was “not a normal person,” according to the AP report, but judges dismissed that defense when Naqibullah was able to state his correct name, age and the day’s date. Under Afghan law, the verdict is subject to at least two stages of appeals.

Related:
AP Photographer Anja Niedringhaus Killed in Afghanistan

July 23rd, 2014

Tim Matsui Wins $25K Fledgling Fund Grant for Sex Trafficking Project

From "Leaving the Life:" Lisa in her robe. ©Tim Matsui

From “Leaving the Life:” Lisa in her robe. ©Tim Matsui

Photographer Tim Matsui, who has focused on stories about sexual violence and human trafficking for the past decade, has won a $25,000 Fledgling Fund grant for his project called “Leaving the Life.” Matsui will use the grant to engage audiences and spur dialogue about sex trafficking of minors in the US. He plans to produce several videos, each about 15 minutes in length, tailored for different audiences.  For instance, one of the videos will examine prostitution among minors from the perspective of law enforcement, which traditionally treats minors in the sex trade as criminals rather than victims. Another short video will present the issue from the perspective of young sex workers.

“Fledgling is supporting the initial creation of this campaign which include several live screenings of the [short videos] and a basic web platform which, in the future, will be built out,” Matusi explains.

Fledgling Fund administrators did not respond to a request for comment.

Matsui won an Alexia Foundation Women’s Initiative Grant in 2012 to document new approaches by officials in Seattle to addressing the problem of the sex trafficking of minors. He will use footage he’s already shot for that project to produce the short videos for “Leaving the Life.” Separately, he has produced a longer documentary in conjunction with MediaStorm called “The Long Night.”

The Fledgling Fund, established in 2005, provides filmmakers with grants to “move audiences to action” with outreach and audience engagement initiatives. The fund has provided nearly $12 million to support 333 projects to date.

Related:
Anatomy of a Successful Grant Application: Tim Matsui on the Women’s Initiative Grant (for PDN subscribers)
Frames Per Second: A Corporate Story, Told by a Journalist

July 21st, 2014

New York Daily News Lays Off Nine Photo Staffers, Including David Handschuh

The New York Daily News has laid off at least 17 newsroom staffers, including five photographers and four photo editors, according to the New York-based publication Capital. Among those who lost their jobs were photographer David Handschuh, who has been with the paper for 27 years; and Jim Alcorn, the paper’s second ranking photo editor.

Reached by telephone, Handschuh told PDN that he was “absolutely speechless” yesterday when he was called into the office from an assignment, “and told I was no longer an employee of the New York Daily News.

“I was shown the door and walked out by myself.”

Handschuh says the other photographers laid off with him include Andrew Theodorakis, Aaron Showalter, Enid Alvarez, and Mark Bonifacio. Besides Alcorn, the photo editors who lost their jobs were Karlo Pastrovic, Kevin Coughlin, and David Pokress, Handschuh says.

According to the Capital report, Daily News staffers were particularly outraged about the decision to lay off Handschuh, who nearly died while covering the terrorist attacks on the World Trade Center for the paper on September 11, 2001.

Handschuh posted a message on Facebook saying, “I know that with support of my family and friends, I will overcome this minor hiccup in life much as I did 12 years ago when I was crushed under the the falling steel and concrete [of the World Trade Center]. The buildings are back. The spirit survives.”

Handschuh, who is 55, says he’s been busy with various projects and had had no plans to retire from the paper. “I was hoping to end my career being carried out of there,” he says.

Despite a dearth of newspaper staff jobs, he is optimistic about finding another job. “I have passion for this business and a desire to keep telling stories. It’s [a matter of] just finding the right place,” he says

The layoffs were the latest round in a series of layoffs at the paper. Like many newspapers, the Daily News has been facing declining circulation and print advertising sales revenue in recent years. Capital quoted a memo from the paper’s management saying that the latest lay offs would “put our company in a stronger position to be more competitive and accelerate our plans for digital expansion.”

More details about the layoffs are available at capitalnewyork.com

July 21st, 2014

First Amendment Advocate Sues NYPD, NYC Over Right to Record Police Activity

A crusader for citizens’ rights to record police officers performing their duties in public has sued the City of New York and several police officers, seeking monetary damages for unlawful arrest, and a declaratory judgment in defense of citizens’ constitutional rights to record police without fear of intimidation or retribution.

Plaintiff Debra Goodman asserts in her lawsuit that the New York City Police Department (NYPD) “maintains a policy, practice and custom in which officers interfere with there rights of individuals who….are recording or attempting to record officers performing their official duties in public” and that top brass in the police department is ignoring the problem. Goodman sued July 14 in US District Court in New York City.

Goodman claims she was on a public sidewalk September 25, 2013 trying to record an interaction between a wheelchair-bound homeless person and police and emergency medical technicians. She was standing about 30 feet away from the scene, and “was not obstructing or interfering with the police officers,” when an officer approached her and began recording Goodman with his own cell phone, according to her lawsuit.

Goodman told the officer that she had the right to record him, but he didn’t have the right to record her, which resulted in a “verbal exchange” that ended quickly with Goodman’s arrest. According to her complaint, she was roughed up during the arrest and held for 25 hours.

Goodman asserts in her suit that the arrest was “motivated and substantially caused by [her] attempt to record events” and that police “demonstrated a callous indifference to and willful disregard of [Goodman's] federal and state protected rights.”

Prosecutors eventually dropped criminal charges against her; her lawsuit doesn’t specify what those charges were.

According to the lawsuit, Goodman regularly recorded police activity during the two years leading up to her arrest because “she believes such recording and posting on social media helps to ensure the police remain accountable to the public and prevents police misconduct.”

Goodman’s lawsuit cites two examples of NYPD officer misconduct coming to light because of video recordings made by eyewitnesses. In one case, an officer was fired for shoving a man violently off a bicycle, then claiming the bicyclist had run into him. In another case, the City of New York refused to defend a police officer in a civil lawsuit after he was caught on video using pepper spray on two women during an Occupy Wall Street protest in 2011.

To bolster her claim that NYPD has a pattern of interfering with citizens who record them, Goodman cites several incidents in which police allegedly arrested citizens for recording them, forcibly deleted videos showing policy activity, or ordered citizens to erase videos in order to avoid arrest.

Goodman’s lawsuit also cites cases in other cities–including Boston, Baltimore, and Indianapolis–where courts have upheld the constitutional rights of citizens to record police, and police departments have agreed to institute programs to train rank-and-file police officers about those rights.

In addition to asking the court for a declaratory judgment in defense of her own and others’ constitutional rights, Goodman is seeking a permanent injunction against the city and the NYPD from retaliating against anyone who “records or attempts to record” police officers performing their duties in public. She is also seeking unspecified damages for violation of her First, Fourth, and Fourtheenth Amendment rights, as well as for assault and battery, false arrest, false imprisonment, and malicious prosecution.

The City of New York has yet to file a response to Goodman’s lawsuit.

Related:
Baltimore to Pay $250K for Videos Deleted by Police: A Vindication for Photographers’ Rights
Police Intimidation Watch: Boston to Pay $170K for Wrongful Arrest of Videographer
Police Intimidation Watch: Cop Charged With Lying About a Photographer’s Arrest
NH Town to pay $75K to Settle First Amendment Claim in Traffic Stop Video Case
PDN Video: A Photographer’s Guide to the First Amendment and Dealing with Police Intimidiation

July 10th, 2014

PDN Video: Mary Virginia Swanson on Selling Prints to Corporations

Mary Virginia Swanson on Selling Prints to Corporations from PDNOnline on Vimeo.

The corporate market for fine art prints has expanded on two fronts, says art photography consultant Mary Virginia Swanson. Corporations and corporate art consultants are both big purchasers of art, including photographic prints, for the walls of hotels, healthcare facilities, office buildings, and other business settings. In this video, Swanson explains the markets, and offers advice about how to tap into them, and price your prints for corporate buyers.

Related:
What to Expect from the Photographer/Gallery Relationship
Mary Virginia Swanson: How to Get the Most Out of a Portfolio Review
What Collectors Want (for PDN subscribers)

July 9th, 2014

Why a Corporation Got a Religious Exemption, But a Photographer Didn’t

After the Supreme Court issued its ruling in the Hobby Lobby case, granting a corporation an exemption to a federal law on the grounds that the law “burdens the exercise of religion” of the company’s owners, we wondered: Why did the Supreme Court grant a religions exemption to a corporation, but decline to give a hearing to a New Mexico wedding photographer who refused to photograph a same-sex wedding for religious reasons?

In 2006, Elane Photography of Albuquerque declined to photograph a same-sex wedding ceremony because of owner Elaine Huguenin’s religious objections. Elane Photography was found  in violation of New Mexico’s anti-discrimination law, which explicitly bars discrimination on the basis of sexual orientation. Elane Photography was ordered to pay more than $6,000 in attorneys fees and costs to Vanessa Willock, who filed the discrimination complaint.

After exhausting her appeals in New Mexico state courts, Huguenin tried to appeal her case to the US Supreme Court, which declined without explanation in April to hear her case. Two months later, on June 30, the Supreme Court ruled that Hobby Lobby was exempt from a requirement under the Affordable Healthcare Act to provide employee health insurance coverage for certain types of  contraceptives because the requirement “substantially burdened” the company owners’ exercise of religion.

Did Hobby Lobby simply make a better legal argument for a religious exemption than Elaine Huguenin did? Could some other wedding photographer now win an exemption from photographing same-sex weddings for religious reasons by arguing that if Hobby Lobby got a religious exemption, then it’s only fair that a small business owner should get one, too?

It turns out that the cases are quite different. Hobby Lobby, a federal case, would have been no help to Elaine Huguenin, who broke a state law. Photographers opposed to shooting same-sex weddings, but who are subject to anti-discrimination laws, can’t invoke the Hobby Lobby decision to make religious freedom arguments, at least not in cases involving state laws.

“The Hobby Lobby [decision] doesn’t apply to state laws,” says Andrew Koppelman, a law professor at Northwestern University who has analyzed the Elane Photography case. He also emphasizes that the Hobby Lobby decision didn’t address an issue of constitutional law, which would trump state law. “Hobby Lobby was an interpretation of [federal] statute and it only modifies other federal statutes. It doesn’t modify state statutes.”

The court reached the Hobby Lobby decision on the grounds of the Religious Freedom Restoration Act (RFRA). That law, passed in 1993, prohibits the federal government from taking any action that substantially burdens the exercise of religion–unless the action is the least restrictive means of serving a compelling government interest. The Supreme Court said there were less burdensome ways to provide the disputed insurance coverage to Hobby Lobby employees than to make Hobby Lobby provide it against the owners’ religious beliefs.

In the decision on the final Elane Photography v. Willock appeal, handed down last August, the New Mexico state supreme court upheld lower state court rulings against Elane Photography for discrimination. The court rejected Huguenin’s religious freedom and free speech arguments.

She had argued that under the New Mexico Religious Freedom Restoration Act (NMRFRA)–the state’s version of the federal law–her religious beliefs should be accommodated. But New Mexico’s high court ruled that the NMRFRA doesn’t apply to private disputes; a government entity has to be a party to the dispute, and that wasn’t the case in Elane Photography v. Willock.

Moreover, the court said, the wording of the NMRFRA bars state government agencies from restricting a person’s free exercise of religion; it doesn’t bar the New Mexico legislature from passing generally applicable laws, as long as they don’t directly discriminate against religion. For instance, a law that applies to everyone, but doesn’t interfere with the exercise of religion, is legal under New Mexico state law, even if some people have religious objections to the law.

Koppelman wrote in his analysis of the Elane Photography case, “After the loss in New Mexico…there was no hope of bringing the religious liberty claim to the Supreme Court. Huguenin lost her case under a [state] law that did not target religion, and the [US Supreme] Court has held that the Free Exercise clause does not create an exemption from neutral laws of general applicability.”

In other words, Huguenin couldn’t appeal to the US Supreme Court on the grounds that her constitutional rights of Free Exercise had been violated by the New Mexico anti-discrimination law; the state law passed muster according to an earlier Supreme Court ruling (Employment Div. v. Smith, 1990).

In response to that 1990 ruling, politicians of all stripes were outraged, so Congress passed the federal Religious Freedom Restoration Act [RFRA] to restore protections of individual religious freedom from infringement by other federal laws. But even if Hobby Lobby had successfully invoked the RFRA before New Mexico courts found Huguenin in violation of state anti-discrimination laws, the Hobby Lobby decision wouldn’t have helped Huguenin because the RFRA has no effect on state laws.

In addition to rejecting Huguenin’s religious freedom claims, the New Mexico  supreme court also rejected her free speech claims. The state supreme court said, “The United States Supreme Court has made it clear that the First Amendment permits [anti-discrimination] regulation by states,” and that the New Mexico anti-discrimination law didn’t deprive Huguenin of her rights to free speech.

Huguenin tried to appeal to the US Supreme Court on Free Speech grounds, not Free Exercise grounds, but the Supreme Court declined without explanation to hear her case. Koppelman asserted in his article that the court rightly rejected the case because the New Mexico anti-discrimination law is “not a serious burden on free speech.”

It’s worth pointing out that the Elane Photography v. Willock decision applies only in New Mexico. Wedding photographers in about 30 other US states can refuse to photograph same-sex weddings for whatever reason–religious or otherwise–without consequence. That’s because federal law doesn’t bar providers of goods and services from discriminating on the basis of sexual orientation, and those 30 or so states also have no laws barring such discrimination. New Mexico just happens to be one of the 20 or so states where discrimination on the basis of sexual orientation is now illegal.

Related:
US Supreme Court Declines New Mexico Wedding Photographer’s Discrimination Case
Photographer Who Refused to Shoot Same Sex Wedding Loses Another Appeal
NM Wedding Photogs Can’t Discriminate Against Same-Sex Couples, Court Confirms
Photographer Loses Bid to Refuse Same Sex Wedding Jobs (PDN subscription required)

July 1st, 2014

Sebastián Liste, Asim Rafiqui Join NOOR as Associate Members

Sebastián Liste (l), Asim Rafiqui (r)

Sebastián Liste (l), Asim Rafiqui (r)

Photographers Sebastián Liste and Asim Rafiqui have joined NOOR as associate members, the Amsterdam-based photo agency has announced.

Liste, a 2012 PDN’s 30 who divides his time between Brazil and Spain, his native country, documents contemporary issues and cultural changes in Latin America and the Mediterranean.  Rafiqui is photojournalist who has reported from countries throughout Europe, Asia and North America, and has written extensively about photojournalism ethics. He recently wrote an essay for PDN about multidisciplinary approaches to photojournalism. Rafiqui is currently based in Kigali, Rwanda and Lahore, Pakistan.

NOOR says its aim is to expand it’s roster of photographers by promoting Liste and Rafiqui to full members after a one-year trial period. The agency, established in 2007, currently has ten photographer-members, based in seven countries.

Related:
PDN’s 30 2012 Gallery: Sebastián Liste

Hackathons: Asim Rafiqui On The Value of Multidisciplinary Experiments

Sebastián Liste Wins 2014 Alexia Foundation Grant of $20K (for PDN subscribers)

June 23rd, 2014

Photographer Wins $2,501 for Infringement in Anti-Gay Attack Ad Case

 

©Kristina Hill

©Kristina Hill

Photographer Kristina Hill has won a $2,501 judgment for copyright infringement against Public Advocate of the United States, ending a federal case in Colorado over unauthorized political attack ads. The judgment was entered June 4 in the US District Court in Denver.

Hill and her wedding photography clients, Brian Edwards and Thomas Privitere, sued Public Advocate of the United States in 2012 for unauthorized use of an engagement photo of Edwards and Privitere in political mailers produced in 2011 to defeat two Colorado lawmakers who supported same-sex marriage.

The mailers show images of Edwards and Privitere kissing each other. They were created from an engagement photo of the couple that the defendants found online and used without permission.

Kristina-Hill-Attack-AdHill alleged copyright infringement for unauthorized use of her photograph. Edwards and Priviter claimed misappropriation of their likeness for commercial purposes, in violation of their privacy and state right-of-publicity laws.

The court dismissed the couple’s misappropriation claim in March on the grounds that the ads were primarily non-commercial, and because they related to a matter of public concern. Therefore, free speech rights under the First Amendment shielded the defendants from the couple’s claim, the court said.

But the judge rejected Public Advocate’s motion to dismiss Hill’s copyright infringement claims on fair use grounds, because the ads didn’t pass the legal tests for fair use.

According to court papers, Public Advocate finally agreed to accept a declaration from the court that it had infringed Hill’s copyright, “without any finding or admission that such infringement was ‘willful’” under federal copyright statutes.

Public Advocate agreed to pay Hill $2,501 to cover costs related to her claim. The judgment agreement notes that Hill was not entitled to attorneys’ fees because she didn’t register her copyright in the disputed image before the infringement.

For the same reason, she was not entitled to statutory damages, but was limited to actual damages, which tend to be much lower than statutory damages.

Hill was not immediately available for comment.

Related:
In Fight Over Anti-Gay Ad, Misappropriation Claims Are Dismissed
Richard Prince Settles with Photographer Patrick Cariou

 

June 18th, 2014

Suffolk County Pays $200K to Settle News Photographer’s Unlawful Arrest Claim

Frame grab from Philip Datz's recording of an enoucnter with a police officer that led to his arrest. The officer shown here repeatedly ordered Datz to "go away." When Datz questioned the order, the officer said, "There's nothing you can hold over my head."

Frame grab from Philip Datz’s recording of an encounter with a police officer that led to his arrest. The officer shown here repeatedly ordered Datz to “go away.” When Datz questioned the order, the officer said, “There’s nothing you can hold over my head.”

Suffolk County, New York  has agreed to pay freelance news videographer Philip Datz $200,000 to settle civil rights claims stemming from Datz’s unlawful arrest for recoding county police activity on a public street in 2011. In addition, the Suffolk County Police Department (SCPD) will institute an ongoing training program for its officers to safeguard “the constitutional right of the public and press to observe, photograph and record police activity in locations open to the public,” according to the settlement terms.

The settlement agreement was approved by the Suffolk Count legislature yesterday.

“This settlement is a victory for the First Amendment and for the public good,” Datz said in a prepared statement posted by NPPA, which helped Datz make his Civil Rights claim. “When police arrest journalists just for doing their job, it creates a chilling effect that jeopardizes everyone’s ability to stay informed about important news in their community.”

Datz, a freelancer, provides footage for local TV news broadcasts. He was shooting the scene of an arrest of a criminal suspect in Bohemia, New York on July 29, 2011 when a county police sergeant approached him and repeatedly ordered him to “go away.” Datz asked where he should stand to continue taping, but the police sergeant said “no place” and threatened to jail Datz if he didn’t leave the scene.

Datz moved down the street and continued recording, and was promptly arrested. Police confiscated his camera and videotape. According to his lawsuit, Datz suffered a shoulder injury during his arrest, and was handcuffed to a police station desk for two hours before police charged him with “obstructing governmental administration.”

Datz recorded the moments leading up to his arrest, during which a police officer confronted him and told him he was prohibited from filming the scene, even from a distance. The officer repeatedly told Datz to “go away” repeatedly. Datz moved a block away, and when he resumed recording, the officer sped up to him in a patrol car and placed him under arrest.

Datz posted the video on YouTube afterwards, and prosecutors ended up dismissing the charges against him in August, 2011. Datz then sued, claiming his arrest was unlawful and that police had violated his First and Fourth Amendment rights.

Under the terms of the settlement, Suffolk County and the SCPD admitted no wrongdoing.

Related:
Police Intimidation Watch: Photog Sues a Long Island Police Department

NH Town to Pay $57K to Settle First Amendment Claim in Traffic Stop Video Case

PDN Video: A Photographer’s Guide to the First Amendment and Dealing with Police Intimidation

June 17th, 2014

NH Town Pays $57K to Settle First Amendment Claim in Traffic Stop Video Case

The town of Weare, New Hampshire, has paid $57,000 to settle a federal lawsuit filed by a citizen who was arrested in 2010 after attempting to videotape a traffic stop, according to a report by the New Hampshire Union Leader.

The settlement came after a federal appeals court in Boston affirmed the constitutional rights of citizens to record police during traffic stops, subject to some “reasonable” restrictions.

Plaintiff Carla Gericke claimed in her lawsuit that her First Amendment rights were violated because police charged her with federal wiretapping violations in retaliation for recording them during the traffic stop.

Gericke was in her car, following a friend who was driving another car, when Weare police pulled her friend over in a late-night traffic stop on March 24, 2010. From a nearby parking lot, Gericke waited for her friend–and told the officer who had pulled her friend over that she was going to videotape the encounter. She pointed her camera, but unbeknownst to the police officer, it failed to record.

The officer ordered Gericke to return to her car, and she complied. When another officer arrived at the scene, he asked Gericke where her camera was, but she refused to tell him. She also refused his request to produce her license and registration. She was arrested and charged with disobeying a police officer, and with “unlawful interception of oral communications”–the wiretapping violation.

After prosecutors declined to press those charges against Gericke, she sued Weare police for violation of her First Amendment rights. Police asked the court to dismiss her claim on the grounds of qualified immunity, arguing there was no clearly established right to film a traffic stop.

The lower court declined to dismiss the case, ruling that because the facts of the the case were in dispute, a jury–and not the court–had to decide whether police were entitled to qualified immunity.

Qualified immunity provides government officials “with breathing room to make reasonable but mistaken judgments,” according to court papers.

When the trial court declined to dismiss the case, police appealed.

The appeals court said police would be entitled to summary judgment if Gericke had not been exercising her First Amendment rights at the time of her arrest OR if a reasonable police officer could have concluded that she was not exercising those rights.

In determining that Gericke was exercising her First Amendment rights, The appeals court cited its own 2011 ruling in the case of Simon Glik v. Cunniffee, holding that “the Constitution protects the right of individuals to videotape police officers performing their duties in public.”

“Those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park,” the court said.

Glik had been filming police officers making an arrest in a public park in Boston when he was arrested. He won a $170,000 settlement from the City of Boston in 2012 for violation of his Civil Rights.

In considering whether a reasonable police officer could have concluded that Gericke was not exercising her First Amendment rights, the appeals court noted that “Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them.”

Because traffic stops can be particularly dangerous to police, restrictions might be justified in some instances.  “Reasonable orders to maintain safety and control, which have incidental effects on an individual’s exercise of the First Amendment right to record, may be permissible,” the court said.

But according to Gericke’s version of events, the court found, “no such restriction was imposed or in place” because police hadn’t ordered her to leave the scene, or told her to stop recording.

“Thus, under Gericke’s version of the facts, any reasonable officer would have understood that charging Gericke with illegal wiretapping for attempted filming that had not been limited by any order or law violated her First Amendment right to film,” the appeals court said. (The court accepted Gericke’s version of the facts only for the purposes of deciding whether the case should be dismissed without a trial).

Moreover, the appeals court said, “A jury could supportably find that the officers violated her First Amendment right by filing the wiretapping charge against her because of her attempted filming of [the officer] during the traffic stop.”

Although police still had the option to appeal to the US Supreme Court or argue their case for qualified immunity before a jury, the town of Weare decided to settle the case. It was settled without any admission of wrongdoing on the part of police, according to the New Hampshire Union Leader.

Related:
Police Intimidation Watch: Boston to Pay $170,000 for Wrongful Arrest of Videographer
PDN Video: A Photographer’s Guide to the First Amendment and Dealing with Police Intimidation