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November 21st, 2013

Media Protest White House Limits on Photographers

Visual press release? President Obama and Vice President Biden met with Israeli and Palestinian negotiators in the Oval Office, July 30, 2013. Media organizations say their photographers were excluded on the grounds that it was a "private meeting." The White House issued this photo by staff photographer Chuck Kennedy afterwards.

“Visual press release”? President Obama and Vice President Biden met with Israeli and Palestinian negotiators in the Oval Office, July 30, 2013. Media organizations say photojournalists were barred because the administration declared it a “private” meeting.  The White House issued this photo by staff photographer Chuck Kennedy afterwards via Flickr.com.

More than three dozen news organizations and journalists’ trade associations have submitted a joint letter of protest to the Obama administration, charging it with denying the news media the right to photograph and videotape President Obama while he is performing his official duties.

“We write to protest the limits on access currently barring photographers who cover the White House,” the letter to White House Press Secretary Jay Carney began. “We hope this letter will serve as the first step in removing these restrictions and, therefore, we also request a meeting with you to discuss this critical issue further.”

To get Carney’s attention, the letter includes an indirect threat of legal action on First Amendment grounds. It says the restrictions on photographers “raise constitutional concerns,” and goes on to cite a 1980 Supreme Court ruling that protects the First Amendment right of the press to access information about the operation of government.

The letter was delivered to Carney today. It was signed by all major TV news networks, wire services, major newspapers, as well as American Society of Media Photographers, National Press Photographers Association, and other organizations.

“As surely as if they were placing a hand over a journalist’s camera lens, officials in this administration are blocking the public from having an independent view of important functions of the Executive Branch of government,” the letter says.

It accuses the administration of excluding photographers by labeling the President’s meetings as “private events.” The letter lists 8 examples of meetings that amounted to “governmental activity of undisputed and wide public interest,” including meetings between the President and the Congressional Hispanic Caucus, Israeli and Palestinian negotiators, and other officials, dignitaries, and activists.

After all but one of the meetings, the White House issued official White House photos of the meetings, according to the letter.   “You are, in effect, replacing independent photojournalism with visual press releases,” news organizations complained to Carney in the protest letter.

The letter says that previous administrations were more transparent, and adds, “[T]he restrictions imposed by your office on photographers undercut the President’s stated desire to continue and broaden that tradition.”

The White House did not immediately respond to requests for comment about the letter.

The Obama administration has been subject to past criticism for its handling of the press.

For instance, the Committee to Protect Journalists says in a recent report, “Despite President Barack Obama¹s repeated promise that his administration would be the most open and transparent in American history, reporters and government transparency advocates said they are disappointed by its performance in improving access to the information they need.

“”This is the most closed, control freak administration I¹ve ever covered,’ said David E. Sanger, veteran chief Washington correspondent of The New York Times.”

The Times was one of the 38 organizations that signed today’s letter of complaint to White House Press Secretary Jay Carney.

November 14th, 2013

Judge Dismisses Authors Guild’s Copyright Lawsuit Against Google

A federal court judge has dismissed a long-standing lawsuit over the Google Books project, ruling that Google’s initiative to scan the contents of millions of books to make them searchable online falls within the bounds of fair use.

Bloomberg Businessweek has reported that Judge Denny Chin has dismissed a lawsuit filed eight years ago by the Authors Guild, which had claimed that Google was violating the copyrights of authors by scanning books without permission. A similar suit against Google, filed by photo trade groups, is still pending.

According to the Businessweek report, Judge Chin wrote in his ruling: “Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”

Paul Aiken, executive director of the Authors Guild, told Businessweek: ““In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”

The decision doesn’t bode well for a nearly identical lawsuit filed against Google in 2010 by ASMP, the Graphic Artists Guild, the North American Nature Photographers Association, the Picture Agency Council of America, and the Professional Photographers of America. Those organizations want to prevent Google from scanning visual works in books without permission from copyright holders.

They filed suit against Google after Judge Chin refused to allow them to join the Authors Guild lawsuit.

Eugene Mopsik, executive director of ASMP, told PDN that he could not make specific comments about the ASMP claim against Google, which is still pending.

But he said of the dismissal of the Authors Guild lawsuit, “I think that it’s a terrible expansion of fair use [doctrine] to the detriment of individual rights holders.” He added, “I think it will further contribute to abuse of the fair use statute by other businesses. A lot of entities will look at this and say, ‘If Google is allowed to use [copyrighted] works this way, why can’t we?’”

Related:
ASMP, Other Trade Groups Sue Google (subscription required)
APA, NPPA Join copyright Suit Against Google
Judge Blocks Google’s Divide-And-Conquer Strategy in Big Copyright Cases

November 12th, 2013

Supreme Court Declines to Hear Patrick Cariou’s Copyright Claim Against Richard Prince

An image from Richard Cariou's book Yes, Rasta, as it was altered by Richard Prince.

An image from Richard Cariou’s book Yes, Rasta, as it was altered by Richard Prince.

The US Supreme Court has declined to review Patrick Cariou’s copyright infringement claim against artist Richard Prince, the Associated Press has reported.

A federal appeals court ruled last spring that artist Richard Prince did not infringe Cariou’s copyrights by reproducing several dozen of Cariou’s images without permission. The appeals court said Prince’s use of Cariou’s images was fair use in most instances, overturning a lower court ruling that had declared Prince liable for infringement.

By refusing to hear the case, the US Supreme Court has effectively let the appeals court decision stand. The high court did not give a reason for its decision.

At issue in the case was a series of paintings and collages that Prince created by appropriating images from Cariou’s book Yes, Rasta. Prince altered the images in various ways for a series of paintings called “Canal Zone,” which he displayed at the Gagosian gallery in New York in 2008. Most of the works eventually sold, fetching a total of $10.4 million.

In its ruling for Prince, The appeals court took a broad view of fair use, finding that Prince’s works qualified as fair use even though they were not intended as commentary on the original works by Cariou. The decision was a victory for appropriation artists, who take elements of works by other artists without permission, and use them in new contexts, often as a form of commentary on society or popular culture.

Related:
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says

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.