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August 21st, 2014

Monkey Selfie Not Eligible for Copyright Registration Under New Rules

Monkey selfie, shot with David Slater's camera.

Monkey selfie, shot with David Slater’s camera.

The US Copyright Office has issued a report stating that it will not register works produced by “nature, animals, or plants,” effectively undermining photographer David Slater’s claim that he owns copyright to a selfie made by a monkey with one of his cameras, arstechnica.com reports.

The rule was issued Tuesday as part of a 1,222-page document addressing a variety of administrative practices by the copyright office, according to the tech website.

The photo in question was shot by a monkey that ran off with one of Slater’s cameras while he was on a shoot in Indonesia. The photo went viral in 2011.

A dispute over copyright to the photo erupted earlier this month when Wikimedia Commons, a collection of 22 million public domain images, posted the image without Slater’s permission. Wikimedia indicated in caption information with the photo that the author of a photo owns copyright, not the camera owner, and that only people can claim copyright ownership. Therefore, the monkey selfie was ineligible for copyright–and in the public domain.

Slater had been preparing to sue Wikimedia Commons, according to a report earlier this month in The Telegraph. According to arstechnica.com, Slater may be able to claim intellectual property rights under a provision of UK law, though that provision has never been tested in court.

Related:
That Monkey Selfie: Who Owns the Copyright To It?

August 21st, 2014

Has a Textbook Publisher Trampled Your Copyrights? There’s a Solution for That.

Photographers and stock photo agencies have filed dozens of lawsuits against textbook publishers in recent years, alleging reproductions of photos the far exceed the limits of usage licenses. Courts have ruled in favor of photographers in many of the cases. Robert Frerck, for instance, won summary judgment this month on his copyright claims against Pearson Education, and won a settlement from McGraw-Hill last May on another claim. Despite all the claims and settlements, new claims continue to surface.

Photographer Joel Gordon recently filed his third copyright infringement lawsuit this year against a textbook publisher. The first two claims were against McGraw-Hill and Pearson Eduction; both cases are still pending. Gordon alleges in his newest claim, against Houghton Mifflin Harcourt (HMH), that between 1990 and 2008, he granted photo usage licenses that “were expressly limited by number of copies, distribution area, language, duration, and/or media.”

HMH ultimately violated those limitations, according to Gordon’s claim. He does not specify the extent of the alleged infringement, explaining that only HMH has that information. But he cites a previous claim against HMH by photographer Ted Wood, who had limited use of his photographs to 40,000 copies, only to discover that HMH had published more than 1 million copies. Wood won his case on summary judgment.

Gordon goes on to cite another 25 claims of copyright infringement against HMH, and he accuses the publisher of having a business model “built on a foundation of pervasive and willful copyright infringement [that] deprived Gordon and hundreds of other photographers and visual art licensors of their rightful compensation and unjustly enriched HMH.”

He is seeking unspecified monetary damages, and an injunction to bar the publisher from further use of his photographs.

Attorney Maurice Harmon of Harmon & Seidman LLC, the lawfirm that represents Gordon, Frerck and many other photographers for claims against textbook publishers, explained via e-mail why these types of claims persist, and how photographers who believe their copyrights have been violated by textbook publishers can protect themselves.

PDN: Why do these claims by photographers against textbook publishers continue to trickle out?
Maurice Harmon: Photographers have only gradually come to realize their photographs have been infringed. Once they know of the individual infringements, the photographers have three years to file a case.

PDN: Do any publishers make good-faith efforts to settle the claims before photographers sue, or before claims go to trial?
MH: That varies greatly—but we always try to negotiate a fair settlement at every stage and 98% settle before trial.

PDN: What must a photographer be prepared to endure, in terms of an investment of time and money, and/or mental anguish—to take on a textbook publisher with one of these claims?
MH: That also varies greatly. Some cases are resolved quickly without anything more than sending us the invoices. Other cases require more documents and a deposition. We advance all expenses, so there is no out-of-pocket cost to the photographer.

PDN: What is required for a photographer to make a strong claim?
MH: Invoices/licenses with terms that identify the specific licensed photographs that limit the uses a publisher can make of those images. Each photograph must also have been registered or can be registered with the Copyright Office.

PDN: What can photographers expect to recover if they win in court?
MH: That depends on the extent of the unauthorized uses, the license terms and conditions, the registration status of the photographs, etc., but it has proven to be well worth our —and the photographers—time.

PDN: If a photographer never registered his or her image copyright, or registered after a textbook publisher misused them, does that make an infringement claim more difficult than it’s worth? [editor's note: Filing registration before a proven infringement makes copyright holders eligible for statutory damages, which are often much higher than actual damages.]
MH: Sometimes, but not always—it depends on the number of infringements after registration and the license terms and conditions.

PDN: Aren’t these claims subject to a statute of limitations? When is it too late to make a claim?
MH: The photographer has three years from the date he or she knew, or reasonably should have known, about the specifics of the infringement to file a case.

PDN: What percentage of these claims are successful? What are the most common reasons they fail—ie, they’re dismissed by a court, or a photographer recovers little or nothing in the end?
MH: The cases we bring have all been successful unless the plaintiff is determined by the Court to lack standing; that is, to lack ownership of the photographs.

PDN: How have textbook publishers changed their license agreements to avoid these claims in the future?
MH: The textbook publishers are now demanding rights so broad it is almost impossible to overrun the license.

PDN: What’s your parting advice to photographers who license images to textbooks?
MH: Act immediately to find out and protect your rights.

Related:
Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos
Judge Refused to Let Book Publisher Weasel Out of Copyright Lawsuit
 After Flouting Print Run Limits, Publishers Face Dozens of Lawsuits

August 14th, 2014

Judge Upholds $1.2 Million Verdict in Morel v. AFP Copyright Case

A federal judge has upheld a $1.2 million jury award in favor of photographer Daniel Morel, after determining that there was sufficient evidence presented at the trial last year to support the verdict.

Morel won $1.2 million in damages after a federal jury determined that Getty and AFP willfully violated his copyrights by uploading eight of his exclusive news images of the 2010 Haiti earthquake, and distributing them without his permission. The award also included an additional $20,000 damages for violations of the Digital Millennium Copyright Act.

Getty and AFP had appealed the $1.2 million award on the grounds that there was not enough evidence presented at the trial to establish willful copyright infringement. They had asked the court to vacate the jury’s finding of willful infringement, reduce the award to Morel, or grant a new trial.

A federal judge rejected the appeal.

“There was evidence from which the jury could have concluded that the defendant’s infringement (and particularly AFP’s) was not just willful but reflected a gross disregard for the rights of copyright holders,” US District Court Judge Alison Nathan wrote in a decision handed down yesterday. She added, “In light of all the consideration that the jury was entitled to consider, [reduction] of the $1.2 million statutory damages award is not required.

“The evidence was plainly sufficient for the jury to conclude that AFP’s infringement was willful under either an actual knowledge or reckless disregard theory,” Nathan said. She said the evidence for willfulness on Getty’s part was “somewhat thin” in comparison to the evidence against AFP. But she went on to say that the evidence of Getty’s willfulness “was sufficient to support the jury’s verdict.”

Morel had uploaded his images to Twitter, offering to license them to news outlets. The images were stolen and re-distributed by another Twitter account holder. Judge Nathan cited evidence presented at trial that Vincent Amalvy, AFP’s  Director of Photography for the Americas,  knew or should have known that the images were actually Morel’s, and that AFP didn’t have permission to distribute them.

The evidence against Getty for willful infringement was that it left Morel’s images on its web site under a false credit for more than two weeks after AFP sent a “kill notice” telling Getty to remove the images.

The award was the maximum amount of statutory damages possible under the law.

AFP and Getty had asked the court to reduce the $1.2 million award on the grounds that it was based on a “speculative” figure of actual damages amounting to $275,000 in lost sales. Judge Nathan said that on the basis of actual downloads (1,000 or more) of the image and sale prices, the actual damage estimate was reasonable. But she went on to say that juries aren’t required in any case to base statutory awards on actual damage estimates.

She also rejected arguments that the $1.2 million statutory award was “instinsically excessive.” Noting that courts defer to the prerogative of juries to set damage awards and rarely set them aside unless they “shock the judicial conscience and constitute of denial of justice,” Nathan said AFP’s actions in particular could be seen as “gross disregard for the rights of copyright holders” and let the jury award stand.

At the same time, Nathan upheld a $10,000 jury award against AFP for Digital Millennium Copyright Act (DMCA) violations, while vacating a $10,000 award for DMCA violations against Getty.

The DMCA makes it unlawful to intentionally remove or alter copyright management information, or to knowingly provide or distribute false copyright management information with intent to conceal infringement.

Evidence presented at trial showed that Vincent Amalvy, the AFP Director of Photography, knew that Morel’s images were falsely credited to another Twitter user, but  distributed the pictures with the false credit anyway, Judge Nathan wrote in her decision.

Getty violated the DMCA by continuing to distribute the images under a false credit, after receiving notice from AFP to remove the images, the judge said. But Getty was not liable under a DMCA provision for distributing the images with knowledge before the fact that the image credits had been illegally altered.

Related Articles:

Morel v. AFP Copyright Verdict: Defense Strategy to Devalue Photos and Vilify Photographer Backfires

Jury Awards Daniel Morel $1.2 Million in Damages from AFP, Getty Images

August 6th, 2014

That Monkey Selfie: Who Owns The Copyright to It?

Wikimedia Commons and photographer David Slater appear to be headed for court over who owns the rights to a selfie shot by a macaque monkey that grabbed Slater’s camera. The photo went viral last week.

The Telegraph now reports that Wikimedia, a collection of 22 million public domain images, has refused Slater’s demand to remove the photo from its web site. Slater is preparing to sue, the newspaper says.

Wikimedia’s legal defense, effectively outlined in the caption it reportedly posted with the photo, is that the author of a photo owns copyright, not the camera owner;  that only people can own copyright, and monkeys aren’t people; therefore, the photo in question is ineligible for copyright by anyone, so it’s in the public domain.

This is the kind of copyright case we were never expecting to see. But now we’re wondering: if corporations have the rights of persons, why not monkeys? Are there any armchair attorneys out there who want to make a copyright argument on the monkey’s behalf?

July 28th, 2014

Photographing Police Is Legal in Texas, Too, Judge Rules in First Amendment Case

A federal court judge in Texas has rejected an argument that the right to photograph or videotape police officers “is not recognized as a constitutional right,” clearing the way for a citizen’s civil rights claim against the City of Austin, its police chief, and various Austin police officers.

“The First Amendment protects the right to videotape police officers in the performance of their official duties, subject to reasonable time, place and manner restrictions,” U.S. Magistrate Judge Mark Lane wrote in the decision handed down last week.

The judge also rejected an argument by the defendants that they should be immune from prosecution in the case because the right to photograph police officers performing their duties was not clearly established when they arrested the plaintiff on three separate occasions.

“A robust consensus of circuit courts of appeals that have addressed this issue have concluded that the First Amendment encompasses a right to record public officials as they perform their official duties,” the judge wrote, citing several right-to-record decisions favorable to plaintiffs from around the country.

The plaintiff in the Texas case, Antonio Buehler, was first arrested on January 1, 2012, when he photographed two Austin police officers engaged in a traffic stop in a parking lot. Buehler was refueling his truck nearby when he heard one of the officers yelling, then saw a passenger of the stopped vehicle being “yanked violently” out of the car and thrown to the ground.

Buehler started taking pictures from a distance, and asked the officers why they were abusing the passenger, according to court papers. One of the officers approached Buehler and arrested him for “resisting arrest, search or transportation” after accusing Buehler of spitting on him, according to court documents.

Buehler filed a complaint with the police, but he alleges that no action was taken. He ended up forming an organization called Peaceful Streets Project to help inform people about their rights “and hold law enforcement accountable.” The organization now routinely video records police officers to prevent and document police brutality, according to court papers.

Buehler was subsequently arrested for recording the arrest of a man in downtown Austin on August 26, 2012. He was arrested a third time about a month later, also for video recording police performing their duties. Both times he was charged with Interference with Public Duties.

In response, Buehler sued for violation of his First and Fourteenth Amendment rights. He also alleged false arrest, excessive force, unlawful search and seizure, and malicious prosecution.

In addition to refusing the city’s motion to throw out Buehler’s federal civil rights claims, Judge Lane sustained his claim for false arrest; his claim that the city and its police chief failed to establish a policy, train, and supervise city police officers about the rights of individuals to record police; and his various state law claims.

But the judge dismissed parts of Buehler’s lawsuit, including claims for malicious prosecution and excessive force, because Buehler’s allegations didn’t meet the legal standards required to sustain those claims.

The ruling was not a final decision on the merits of Buehler’s claims. Instead, it cleared the way for Buehler to continue pursuing the surviving claims.

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

First Amendment Advocate Sues NYPD, NYC Over Right to Record Police Activity
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
NH Town to pay $75K to Settle First Amendment Claim in Traffic Stop Video Case

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

Court Refuses to Hear Challenge to FAA’s Drone Cease-and-Desist Orders

A Federal appeals court in Washington, DC, has dismissed a lawsuit against the Federal Aviation Administration (FAA) by a search-and-rescue group in Texas that uses drones in its work, but both sides in the case are declaring victory.

Texas EquuSearch had tried to overturn an email from the FAA ordering the group to stop operating unmanned aerial vehicles (UAVs), commonly called drones, in its search-and-rescue operations, the AP reports.

The three-judge panel said it could not review the case because the warning notice the FAA sent to did not represent the agency’s final policy on drone use, “nor did it give rise to any legal consequences.” The FAA is expected to finalize its policy on piloting drones for non-recreational use next year. The policy could affect photographers who  use drones to carry cameras on assignment.

The court’s ruling fails to clarify what authority the FAA has currently to regulate the use of drones.  In March, a federal administrative court judge overturned a $10,000 fine the FAA had imposed on photographer Raphael Pirker for using a drone to shoot a video for the University of Virginia, because the FAA still has no regulations on the books regarding the use of drones.

Brendan Schulman, the lawyer for Texas EquuSearch, told the site Motherboard that the appeals court ruling last week  “achieves the desired result of clarifying that Texas EquuSearch is not legally required to halt these humanitarian operations.” Texas EquuSearch has resumed piloting drones, AP reports.

In a statement, the FAA said, “The court’s decision in favor of the FAA regarding the Texas EquuSearch matter has no bearing on the FAA’s authority to regulate” unmanned aircraft vehicles. The FAA also said it reviews the use of drones “that are not for hobby or recreation on a case-by-case basis.”

Related Article
Commercial Drones are Legal, Federal Court Says

http://pdnpulse.pdnonline.com/2014/03/commercial-drones-are-legal-federal-court-says.html

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 9th, 2014

How a Former White House Photographer Documented a Marriage-Equality Battle

© AFER/Photo by Diana Walker

© AFER/Photo by Diana Walker

Having worked as Time magazine’s White House photographer through three presidential administrations, Diana Walker is used to capturing intimate views of history-making moments. Her images of a different kind of political drama are highlighted in the documentary “The Case Against 8,” which debuted at The Sundance Film Festival this year and has recently been shown on HBO.

During the four-year court battle to overturn Proposition 8, the law banning same-sex marriage in California which ended in the Supreme Court a year ago last month, Walker had total access to the plaintiffs, Kris Perry, Sandy Stier, Jeff Zarrillo and Paul Katami, and to the legal team working on their case, including lead attorneys David Boies and Ted Olson. Walker was on assignment from American Foundation for Equal Rights (AFER), the non-profit that funded the lawsuit.  Walker calls the assignment “ideal”: “I got to do what I like to do, which is showing people doing their thing in hopes it leads to an understanding of what they do  and why they do it.”

© AFER/photo by Diana Walker

© AFER/photo by Diana Walker

She was contacted for the assignment by Chad Griffin who was then heading AFER (Griffin is now president of the Human Rights Campaign). Walker had met Griffin when he worked on the communications team in the Clinton White House. When Griffin said he wanted to hire her to document the progress of the case to throw out Prop 8, Walker recalls, “I said, ‘What’s Prop 8?’” Though she was unfamiliar with the issue, she says, “I knew I liked Chad enormously and any project he had would be something I’d be interested in, so I said ok.”

Walker’s responsibilities were typical for an assignment for a non-profit: “Chad wanted evidence of what they’d all been through and what it looked like,” including images to share with the press and AFER donors. She photographed demonstrations, rallies, the plaintiffs going in and out of court, behind the scenes shots of meetings of the legal team and prepping the plaintiffs for testimony. Walker, who divides her time between Washington, DC, and a vacation home in Idaho, says she typically had a few days’ notice of when a verdict would be announced, or when the lawyers or plaintiffs would be making a public appearance. “I had to be available whenever they needed me,” she says. AFER allowed her total access, she says, and the plaintiffs in the case allowed her to photograph them and their families at home .

One part of the assignment, however, was unusual for Walker: She asked for a buy out, and negotiated a fee for the copyright to her images. “I said, I’m happy to do this, but I don’t want to be left sitting on my computer, sending out photos to all these different parties who are going to be interested in my stills.” Though Walker has retained the copyright to all her magazine assignments, and published two books using images in her archive (a third, about Hillary Clinton, will be published by Simon & Schuster in October), she didn’t want to handle licensing requests for the AFER images. “I am at the stage in my life where my husband and I travel a great deal. We love to be with our five grandchildren. Being available to handle frequent requests for images seemed more than I could handle or wanted to deal with.” Griffin agreed to her terms (Walker didn’t disclose her fee to PDN).  Walker says she did quick edits after each shoot to “get rid of the junk,” but Griffin agreed to consult her when large batches of her images were used. For example, Walker was asked for her input when AFER  provided a selection of her images to Jo Becker, author of Forcing the Spring: Inside the Fight for Marriage Equality, published this spring; and to Boies and Olson who published their own book about the case in June.

While Walker was documenting the case, she was often working alongside filmmakers Ben Cotner and Ryan White, who were shooting footage for what would become “The Case Against 8.” The film shows Walker at work, and includes many of her black-and-white portraits of the two couples at the heart of the case.

“It was so interesting to me, because they were these two sets of plaintiffs totally unused to being in the public eye, who were totally unbothered by me or the film crew,” Walker says. After four years in their company, “I got to really love the players. They were all wonderful.”

After attending a screening of “The Case Against 8,” Walker says, “I was simply delighted with the way they used my images.” The only part of the story she regrets being unable to photograph, she says, were the weddings of Perry and  Stier in San Francisco and of Zarrillo and Katami in Los Angeles. After the US Supreme Court had ruled that the supporters of Proposition 8 had no standing to appeal the case (on the same day the Court ruled the federal Defense of Marriage Act was unconstitutional), California’s high court had to issue a ruling that same-sex marriages could begin again in the state. Walker was out of town the morning the order was issued, when the plaintiffs went straight to their local court houses to get their marriage licenses and be married.

“But I was there at the Supreme Court,” Walker says. “That was great.”

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)