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October 24th, 2013

PPE 2013: Photography & The Law: Access, Copyright and Social Media Issues

During a talk at PhotoPlus Expo 2013, sponsored by the National Press Photographers Association (NPPA), attorneys Mickey Osterreicher and Alicia Wagner Calzada provided tips for how photographers can protect their First Amendment rights and control the copyright and distribution of their work.

Tips On the Right to Photograph in Public

Osterreicher, who is the general counsel for the NPPA and was a working photographer for 40 years before he became a lawyer, offered advice for news photographers in dealing with police.

He noted that photographers or videographers are never arrested for documenting a news event in public. Instead they are arrested for “discretionary charges,” what he termed “catch and release” charges, which can include disorderly conduct, disturbing the peace and loitering.

If a police officer orders a photographer to stop taking pictures in public, they are violating the rights of that photographer, Osterreicher said. Photographers can avoid being accused of interfering with or obstructing police officers by following reasonable directions from police when they’re given. He also mentioned that it’s prudent to be aware that officers are concerned with things like weapon retention, making sure nobody is close enough to them to reach for their gun. If a photographer is in an officer’s face with a camera, the officer can reasonably claim that photographer is interfering or obstructing their work. (more…)

October 24th, 2013

New Law Regulates the Use of Child Models in New York

New legislation in New York State demands that models under the age of 18 receive the same protection as child performers. Photographers and clients who hire models under the age of 18 will have to provide them with more protections and services on shoots in New York State under a new law that takes effect November 20. New York Gov. Andrew Cuomo signed the new child labor law on Monday night.

State senators Jeffrey D. Klein and Diane Savino, Democrats from New York City, proposed the legislation earlier this summer.

Lawyers writing for The National Law Review broke down the implications of the legislation in an article published in July. According to the article, “the new legislation will provide that companies employing models under the age of 18 will be required to obtain certificates of eligibility, to provide chaperones and tutors and to limit their work hours,” among other requirements. Under-age models will now receive the same protections as child performers.

The law also stipulates that 15 percent of a child model’s gross income be placed in a trust by the model’s employer.

Advocacy organization The Model Alliance, which supported the legislation, created a guide to understanding the new law, “Under 18 Models and the Law,” which can be downloaded here: http://modelalliance.org/child-models

October 23rd, 2013

NFL, Getty and AP Hit With Copyright Infringement Lawsuit

Seven photographer are suing the National Football League and two image distributors–Getty Images and Associated Press (AP)–for copyright infringement over widespread use of their images in NFL ads, products and promotions without fair compensation, according to an October 21 report from Courthouse News Service.

The lawsuit, filed in federal court in New York, is a legal tangle because Getty and AP represented the photographers, and were authorized to license their work at the time of the alleged infringements. But the case boils down to allegations that Getty and AP breached their fiduciary duty to the photographers because of conflicts of interest.

Both distributors had incentive to curry favor with the NFL in order to gain and hang onto an exclusive contract to license images of NFL events to third parties for commercial use. Getty won the contract in 2007, then lost the contract to AP in 2009.

According to the lawsuit, the photographers “recently discovered that both Getty Images and AP granted the NFL nearly unfettered access to plaintiffs’ photo collections and, either expressly or by inaction, allowed the NFL to make free or ‘complimentary’ use of plaintiffs’ copyrighted photos.”

According to the Courthouse News Service report, the photographers are also accusing Getty of using bare-knuckle tactics to keep them from moving their images to AP, after AP won the exclusive NFL contract in 2009. Specifically, the plaintiffs allege that Getty threatened to stop marketing all of their sports images–including Major League Baseball photos–for commercial use, if the photographers moved their NFL images to AP.

Photographer Paul Spinelli is the lead plaintiff in the case. The other photographer plaintiffs are Paul Jasienski, David Stluka, Thomas E. Witte, David Drapkin, George Newman Lowrance and Scott Boehm.

AP and Getty both declined PDN’s request to comment about the lawsuit.

September 25th, 2013

In TwitPic Copyright Claim, Daniel Morel Seeks $13.2 Million from AFP, Getty

©Daniel Morel

©Daniel Morel

Photographer Daniel Morel is seeking as much as $13.2 million from AFP and Getty Images at a trial to determine damages for copyright infringement of his exclusive images of the aftermath of the 2010 Haiti earthquake, which Morel had posted via Twitter. The trial is scheduled to begin November 12.

A federal court determined earlier this year that AFP infringed Morel’s copyrights in 8 photographs by distributing those photos without his permission.  The November 12 jury trial is meant to determine the amount of damages owed to Morel, based upon the question of whether or not the infringements were willful.

Morel asserts that the infringements were “willful and intentional,” and says in court papers  that “AFP knew or should have known the images were his when they distributed them without permission.” For copyright infringement, he is seeking a maximum of $1.2 million in statutory damages.

Morel also contends that both AFP and Getty images violated the Digital Millennium Copyright Act (DMCA) by intentionally removing copyright management information that identified the images as Morel’s. He says AFP and Getty “knowingly provided and distributed false copyright management information” to their customers. For the DMCA violations, Morel is seeing a maximum of $13.2 million.

Getty and AFP no longer dispute that they violated Morel’s copyright, but deny that they acted with reckless disregard or willfulness. They say they “do not believe Mr. Morel can meet his burden of proof on this point.” They say in the pre-trial court papers that “they believed they had the right to do so and were acting within industry norms, customs, and practice.” Getty also says it distributed Morel’s images with “innocent intent.”

Both defendants also assert that if they did violate the DMCA, Morel is not legally entitled to the level of damages he is claiming for those violations.

Morel happened to be in Haiti at the time of the January 2010 earthquake there. He posted exclusive images of the destruction on his TwitPic account less than two hours later. The images were immediately stolen and re-posted under the name of another Twitter user. AFP picked up the images and distributed them through its own image service and through Getty under the false credit.

Morel’s agent, Corbis, sent take-down notices to Getty and AFP, but it took AFP two days to issue a kill notice. And when they did, they told clients and partners to kill images credited to Morel, but not the identical images that had been sent out initially under the false credit. Getty allegedly didn’t purge the images with the false credits, and continued to distribute them.

Morel has maintained that the companies violated his copyrights willfully because at least some AFP photo editors knew the images in question were his, not those of the other Twitter user who stole the images.

In his original claim, Morel also sued several AFP and Getty customers for unauthorized use of his images. Those defendants previously settled with Morel.

Related story:
AFP, Washington Post Violated Daniel Morel’s Copyright, Judge Says

September 19th, 2013

Police Intimidation Watch: New Haven Police Sued for Arresting Photographer, Erasing iPhone Video

A New Haven man jailed for recording New Haven, Connecticut police arresting three people filed a $500,000 lawsuit suit yesterday against the city and several individual officers for violation of his civil rights.

Luis Luna, a medical interpreter, was jailed in September, 2010 after he came upon police making the arrests, and began recording the incident with his iPhone. At the scene was Assistant Chief Ariel Melendez, who approached Luna, snatched his phone away, and ordered him arrested, according to a report in the New Haven Independent.

Luna’s iPhone was returned when he was released from jail four hours later, but his videos had been erased.

In his court appearance two weeks later, Luna contested the charges of interfering with a police officer. Prosecutors agreed to drop that charge on condition that Luna plead guilty to a charge of “creating a public disturbance,” and pay a $50 fine. Without legal representation to fight the more serious charge, Luna agreed to plead guilty to the lesser charge and pay the fine.

Police internal affairs investigators later issued a report charging the assistant chief who ordered Luna’s arrest and the erasure of the video with “conduct unbecoming an officer.” The investigators said that Luna had acted legally, and that the assistant chief had violated his rights, according to the New Haven Independent.

As a result of the internal affairs report, Luna was able to get his guilty plea for “creating a public disturbance” reversed. Assistant Chief Melendez has since retired, and the New Haven police department also issued a new policy to prevent officers from interfering with the rights of citizen journalists.

In his lawsuit, Luna charged Melendez and the City of New Haven with false arrest, violation of his First Amendment rights, and illegal seizure in violation of his Fourteenth Amendment rights. He is seeking $500,000 in damages and a declaration from the court that it is illegal for the police to arrest anyone for filming them while carrying out their duties in public.

Related:
Department of Justice Warns Police Against Violating Photographers’ Rights
Police Intimidation Watch: Cop Charged with Lying About a Photographer’s Arrest
Police Intimidation Watch: Detroit Police Apologize After Video Shows Them Violating Photographer’s Rights

September 5th, 2013

Facebook Makes Alarming Changes to Terms, ASMP Breaks Down the Changes

Facebook has altered their terms of service to make it possible for companies that pay the social media network to utilize Facebook users’ content and likeness without compensation or permission. The changes are sure to alienate Facebook’s users in the creative community, who make a living from licensing their work and content.

Among the changes is this gem:

“You give us permission to use your name, and profile picture, content, and information in connection with commercial, sponsored, or related that content (such as a brand you like) served or enhanced by us. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it.”

ASMP created a handy Q&A about the new terms of use that helps break down the changes and what they mean for photographers.

This comes on the heels of the ASMP-led criticism of Instagram that was recently issued.

We have to wonder, at what point will a social network take the step to actually compensate the users that make it tick and protect them from unauthorized exploitation and surveillance? Seems to us like a network that figured out how to do that would find a community very quickly.

Related: Photography Trade Organizations Take Aim at Instagram Terms
AFP, Washington Post Violated Daniel Morel’s Copyrights, Judge Rules
Morel Case Highlights Copyright Risks of Social Networks

August 28th, 2013

Ruling on Wedding Photog’s Refusal of Same-Sex Couple Explains How Law Applies to Annie Leibovitz

Last week, in their ruling that wedding photographers in New Mexico can’t refuse on moral or religious grounds to provide services to same-sex couples, the state supreme court justices were careful to note that state anti-discrimination law does not apply to commercial or fine-art photographers. The justices said the level of a wedding photographer’s artistry doesn’t matter, and referenced the work of Annie Leibovitz and Peter Lindbergh as a hypothetical example to make the point.

The appellant in the case, Elane Photography, was asking the state’s high court to overturn a ruling by a lower court that said Elane Photography had violated the law by refusing to photograph a commitment ceremony of a same-sex couple.

In rejecting Elane Photography’s appeal, the high court noted that the ruling applies only to photographers who offer their services to the general public:

“The reality is that because [Elane Photography] is a public accommodation [ie, a business offering services to the general public], its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not,” the court said in its decision.

“This determination has no relation to the artistic merit of  photographs produced by Elane Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, they would be subject to [the state's anti-discrimination laws].”

The full story about the case is at PDNonline.com.

August 27th, 2013

Police Intimidation Watch: Cop Charged with Lying About a Photographer’s Arrest

A New York City police officer has been charged with felonies and misdemeanors for lying about why he arrested a freelance news photographer, according to a report in The New York Times.

The officer, Michael Ackermann, claimed that he had arrested Robert Stolarik, a freelancer for The New York Times, because Stolarik had repeatedly flashed a camera strobe in Ackermann’s face, thereby interfering with another arrest Ackermann was making at the time. On the basis of photographic evidence and eyewitness accounts of the incident, the Bronx district attorney concluded that Ackermann was lying, according to the Times story.

Stolarik was arrested in August, 2012 when police got angry with him for allegedly refusing to stop taking pictures of an arrest, according to an earlier Times report.

At the time, Stolarik was accompanying two reporters who were conducting street interviews when they came upon a street altercation. When police at the scene ordered Stolarik to cease taking pictures, he identified himself as a journalist for the New York Times, and continued to shoot. A police officer then “slammed” Stolarik’s camera into his face. Stolarik asked for their badge numbers, at which point they took his cameras, dragged him to the ground, and arrested him.

According to a police report, police said they had ordered the crowd and Stolarik to move back “numerous times,” and that Stolarik had resisted arrest “violently.”

Stolarik received minor injuries during the arrest. Police returned his gear about a week after the arrest. The charges against him were eventually dropped.

The Bronx district attorney investigating the case concluded that Stolarik didn’t use a flash during the incident, and didn’t have one on his camera, despite Officer Ackermann’s claims.

Ackermann was charged with filing false records and official misconduct. If convicted of the most serious charges, he could be sentenced to prison and lose his job, according to the Times report.

Police Intimidation Watch: NYPD Arrests Times Freelancer
Police Intimidation Watch: NYPD Returns Cameras to Times Freelancer

August 23rd, 2013

Fine-Art Photographer Zwelethu Mthethwa Faces Murder Trial August 26

© Aperture/photo by Zwelethu Mthethwa

© Aperture/photo by Zwelethu Mthethwa

Zwelethu Mthethwa, the South African fine-art photographer, will go on trial on Monday, charged with murdering a woman on a street in a suburb of Cape Town, according to South Africa’s Mail & Guardian. Mthethwa was arrested May 5, accused of beating and kicking Noku­phila Kumalo to death. Die Burger, an Afrikaans-language newspaper, reported in June that a man identified as Mthethwa had been caught on closed circuit television on April 13 getting out of his car and repeatedly hitting Kumalo, then kicking her after she fell to the ground.

Mthethwa has denied the charge. He was released on bail following his arrest.

When contacted by PDN, Mthethwa’s US dealer, Jack Shainman Gallery in New York, would not comment on the case.

In an interview with a South African paper in June, Mark Read, director of the Everard Read Gallery in Johannesburg, which represents Mthethwa, said that when he spoke to the artist, he “was keen to say that it will all be sorted out.”

A graduate of the Rochester Institute of Technology and the recipient of a Fulbright Scholarship, Mthethwa has widely exhibited his portraits of black residents of South Africa, including migrant workers, miners and cane farmers. His work was included in the 2005 Venice Biennale, and his first monograph was published by Aperture in 2010, the year a solo exhibition of his work was shown at the Studio Museum in Harlem, New York. In a 2010 interview with PDN, Mthethwa said that in photographing marginalized South Africans in their homes, “I really wanted to empower the people.”

Related Articles
Zwelethu Mthethwa: Color and Commonality

August 22nd, 2013

Photography Trade Organizations Take Aim at Instagram Terms

Several professional photography trade organizations have banded together to study Instagram’s Terms of Service, and today the American Society of Media Photographers issued the following press release:

Photographic Community, Led by The American Society of Media Photographers, Deems Instagram Terms Too Far-Reaching

PHILADELPHIA, Aug. 22, 2013 (GLOBE NEWSWIRE) — The American Society of Media Photographers (ASMP), joined by National Press Photographers Association (NPPA), The Digital Media Licensing Association (PACA), American Photographic Artists (APA), This Week in Photography (TWiP), Professional Photographers of America (PPA), Coordination of European Picture Agencies Stock, Press and Heritage (CEPIC), Graphic Artists Guild (GAG) and American Society of Picture Professionals (ASPP), has mounted a campaign to address the far-reaching Terms of Use of the image sharing service Instagram. Since 2010, more than 16 billion images and movies have been uploaded to Instagram. The organizations believe that few of the users who share images on the site understand the rights they are giving away. ASMP has issued “The Instagram Papers,” information in the form of essays and analysis about the Terms of Use in which the key issue is that users should have the ‘right to terminate’ their agreement with Instagram, allowing them to remove permissions for the use of their identities and content at any time.

Specifically, the Terms of Use give Instagram perpetual use of photos and video as well as the nearly unlimited right to license the images to any and all third parties. And, after granting this broad license to Instagram, users also relinquish the right to terminate the agreement. Once uploaded, they cannot remove their work and their identity from Instagram. Additionally, in the event of litigation regarding a photo or video, it is the account holder who is responsible for attorney and other fees, not Instagram.

Moreover, while Instagram’s agreement includes the right to sublicense images, it specifically excludes the need to ever pay creators, regardless of the way the company may use or sell their work. The photographic community believes strongly that fair compensation for the creators of work is a vital component of a fair agreement.

According to ASMP Executive Director Eugene Mopsik, “While clearly benefiting Instagram, the rights of imaging professionals and general users stand to be infringed upon in an unprecedented way. We are concerned that not only have Instagram’s Terms of Use gone beyond acceptable standards, but also that other social media providers may use these onerous terms as a template for their own agreements.”

Peter Krogh, ASMP’s Digital Standards & Practices Chair, said, “As online services become larger repositories of intellectual property, power has shifted away from the user and toward the company provider. Unless changes are made by Instagram, we believe the terms will have a profound and negative impact on imaging professionals, publishers and general users.”

In the coming weeks and months ASMP, along with the other listed organizations, will continue to reach out to gain support in addressing these egregious terms before they become the industry standard.

Related: Bowing to Pressure from Users, Instagram Retracts New Terms of Use
Now That We Know Instagram Isn’t a Charity, What Would You Be Willing to Pay?