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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)

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

May 20th, 2014

Wal-mart Sues Photographer’s Widow Claiming Copyright to Decades of Portraits of Walton Family

Wal-mart Stores Inc. and the Walton family, which owns the company, have filed suit to force the widow of an Arkansas portrait photographer to hand over all prints, negatives and proofs of Walton family members made between 1950 and 1994, Professional Photographers of America (PPA) and the Arkansas Times reports. The widow, who reportedly had refused an offer of $2,000 for the pictures, has counter-sued, claiming she owns the copyright.

The Walton family is claiming the photographs belong to them because Bob’s Studio of Photography in Fayetteville made the portraits under the Walton family’s “supervision.” The Walton family says in its lawsuit that the portrait studio stored the photographs as a courtesy, according to the PPA and Arkansas Times reports. More than 200 photographs are in dispute, the reports say.

David Huff and his father, Robert A. Huff, owned Bob’s Studio of Photography. Both are now deceased.

The defendant in the case is Helen B. M. Huff, widow of David Huff. She is countersuing on the grounds that she owns copyright to the photographs because her late husband and his father shot the photographs as private contractors, using their own equipment. She is seeking an injunction against the Walton family and Wal-mart to force them to stop using the photographs without her permission.

A court date is set for July 7.

May 13th, 2014

Collector Sues Chicago Gallery for Damaging 54 of His Vivian Maier Prints

A photo collector who bought part of the Vivian Maier photo trove when Maier’s storage locker was auctioned off in 2007 has sued a Chicago gallery, Corbett vs. Dempsey, for damaging 54 images during a 2012 exhibition of the work, according to a report today in the Chicago Reader.

Vivian Maier, who was unknown as a photographer when she died in 2009, has since been promoted to stardom by the PR machine of collectors John Maloof and Jeffrey Goldstein. They bought the lion’s share of Maier’s negatives and prints at the 2007 auction and are not involved in the claim against Corbett vs. Dempsey.

The collector suing the gallery is Ron Slattery, who bought several thousand of Maier’s negatives and several thousand prints when her storage locker was auctioned. According to the Chicago Reader report, Slattery provided 56 of the prints to Corbett vs. Dempsey for an exhibition and sale that ran from June through December, 2012.

Two of the prints sold. The gallery returned the other 54 prints in damaged condition, Slattery claims. He alleges that the gallery used too much hinge glue to mount the photographs, and it soaked through the print paper, “severely distorting the images.”

Slattery’s claim also that the damage was “exacerbated” by exposure of the prints to “excessive heat,” and he alleges the gallery tried to cover up the damage, according to the Chicago Reader report.

The gallery says it admitted the damage to Slattery upon return of the images, and claims have made “multiple” offers to settle the claim for $8,700–the cost of repairs estimated by a restorer consulted by the gallery.

Slattery is seeking $200,000 in actual damages to the photographs, plus $2 million in punitive damages.

May 1st, 2014

George Steinmetz Wonders: Was It Worth Getting Arrested for National Geographic Cover Story Photos?

Brookover Ranch Feed Yard near Garden City, Kansas, with adjacent crop circles of grain used to fatten cattle. © 2014 George Steinmetz/National Geographic

A picture worth being arrested for? Brookover Ranch Feed Yard near Garden City, Kansas, with adjacent crop circles of grain used to fatten cattle.                © 2014 George Steinmetz/National Geographic

This month’s cover story of National Geographic, about how to meet growing worldwide demand for food, is the story that got photographer George Steinmetz in trouble last June, and he’s still stinging from the experience.

Caught in the political crossfire between animal rights activists and agribusiness interests trying to make it illegal to photograph factory farm operations, he wound up in jail in Kansas while on assignment to shoot the story, called “The New Food Revolution.”

“It was quite a surprise to me,” says Steinmetz, who is renowned for the beautiful aerial landscapes he shoots all over the world, and who is used to encounters with authorities. “I’ve been detained in Iran and Yemen, and questioned about spying, but never arrested. And then I get thrown in jail in America.” (more…)

April 24th, 2014

If Photography Is Not a Crime, When Will Police Get the Message?

In February, just as the City of Baltimore was hammering out a legal settlement to end police interference with photographers, Baltimore police forcibly removed a Baltimore Sun photo editor from the scene of a shooting on a public street. That action underscored a seemingly intractable problem: getting the message to rank-and-file police officers that people have a constitutional right to photograph police carrying out their duties in public.

Judges have repeatedly thrown out criminal charges against photographers arrested while photographing police activities in public. Cities have had to pay to settle claims of civil rights violations stemming from some of the arrests. The City of Boston, for instance, agreed in 2012 to pay $170,000 to settle a videographer’s civil rights claims over his arrest for videotaping police arresting another person on the Boston Common. Baltimore ended up paying $250,000 as part of its recent settlement with Christopher Sharp, who alleged that police erased the videos on his iPhone after detaining him for using the iPhone to record the arrest and beating of another person.

And yet the incidents of police interference with photographers continue apace. No sooner is one case settled, when another incident or claim pops up.

“It certainly is like playing a game of whack-a-mole,” says attorney Mickey Osterreicher of the National Press Photographers Association. (more…)

April 17th, 2014

Baltimore To Pay $250K for Videos Deleted by Police: A Vindication of Photographers’ Rights

Christopher Sharp, plaintiff in Sharp v. Baltimore City Police Department

Christopher Sharp, plaintiff in Sharp v. Baltimore City Police Department (source: ACLU video)

The City of Baltimore and its police department have agreed to pay $250,000 to settle a claim of unlawful seizure and destruction of cell phone videos that belonged to a citizen who allegedly recorded police arresting and beating another person.

Police have admitted no wrongdoing, but agreed as part of the settlement to issue a written apology to Christopher Sharp, the plaintiff in the case.

In addition, the Baltimore Police Department (BPD)  has agreed to adopt a comprehensive and detailed written policy intended to protect the rights of citizens to photograph and record police activity from anywhere those citizens have a legal right to be, without interference or intimidation from police. (more…)