Posted by Mickey H. Osterreicher — 13 May 2012
In January of this year I wrote my first blog talking about the War on Photography and how there has always been tension between the press and government regarding news coverage of matters of public interest. Given the events of the last few months I think it is not only important to update everyone on recent occurrences but also critical that photographers know their rights in these situations.
Photographers continue to be interfered with and arrested for doing nothing more than taking pictures in public. Of course the criminal complaint or summons never states "illegal photography" because there is no such thing. Instead charges are for disorderly conduct or obstruction of governmental administration. A New York City police officer recently charged a photographer for "failure to comply with a police officer," when he alleged failed to move on a public street where other members of the public were watching firemen respond to a fire at Macy's department store.
NYPD by Kristin Michel
What was even more troubling than a law enforcement officer limiting the access of someone taking photographs while permitting the general public to observe was that the charge is a violation of Section 1-03(c)(1) of the Parks and the issuance of such a summons runs contrary to the language found in the NYPD Patrol Guide and recently issued FINEST message from Commissioner Kelly that directs members of the department "to cooperate with media representatives by not interfering or allowing others to interfere with media personnel acting in their news gathering capacity . . . and assist the media representative and provide safe access to the scene, if possible."
Another disturbing case involves a Temple University photojournalism student who was arrested by Philadelphia police near his house when he attempted to take photographs for a nighttime school assignment. It seems the officers believed that he did not have the right to photograph them performing a traffic stop on a city street. The student was charged with a number of misdemeanors including obstruction of governmental administration, disorderly conduct and resisting arrest, even though he stayed a respectful distance away.
The rule of thumb is if you are out in public, and you see something in public, you are allowed to photograph and record. Don't get in between officers and what they're doing. Use common sense, if someone asks you to move back five or ten feet, that may be reasonable. But it may not be reasonable if someone orders you to leave an area where something interesting is happening while allowing the public to remain or ordering you to stop photographing a building while standing on a public sidewalk.
Remember that during encounters with law enforcement officers - if you do not comply with their orders (whether lawful or even reasonable) you may be subject to arrest along with the seizure of your equipment. With the proliferation of digital photography, there is no obligation to show your images to a law enforcement officer even though you may be asked to do so. No one may view the photographs in your camera without your consent, although under certain conditions known as "exigent circumstances" an officer may seize your camera/recorded material if s/he believes that it contains evidence of a crime in order to prevent it from being lost or destroyed. Those files may not be searched (viewed/copied) without proper legal authority such as a search warrant or subpoena. Under no circumstances may anyone delete or erase those recordings or order you or a third party to do so.
But it is one thing for you to know your rights as a photographer and quite another for a security guard or policeman to recognize or even care about those rights. So what should one do when faced with these ever-increasing encounters? Obviously every situation is different, but it is important to stay calm, speak in a conversational tone and be respectful. Whenever possible try to keep recording the interaction as it may be your best evidence of what actually happened should you get arrested. If the officer or guard is willing to talk (which often they are not) try to explain your position and respectfully assert your understanding of your rights. If that does not work, request to speak to a supervisory or public information officer. If that is not possible you may be faced with a personal decision as to whether what you are doing is important enough to risk arrest. No one else can make that decision for you as it is your liberty that is at stake. Should you be arrested, you may ultimately win the legal battle but that usually takes some time and may also be costly.
A measure that has led to photography as a suspicious activity comes from language found in documents published by the federal government. Issued by the Department of Homeland Security, the ISE-SAR Criteria Guidance table (p.29) lists "photography" as "taking pictures or video of facilities, buildings, or infrastructure in a manner that would arouse suspicion in a reasonable person. Examples include taking pictures or video of infrequently used access points, personnel performing security functions (patrols, badge/vehicle checking), security-related equipment (perimeter fencing, security cameras), etc." This section also contains a note that states: "These activities are generally First Amendment-protected activities and should not be reported in a SAR or ISE-SAR absent articulable facts and circumstances that support the source agency's suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism, including evidence of pre-operational planning related to terrorism."
While this revised definition of photography is certainly welcome there are many organizations including the LAPD that still define under suspicious activity someone who "takes pictures or video footage (with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.). Unfortunately these definitions have erroneously created the impression in law enforcement circles that photography is a categorically suspicious activity rather than a constitutionally protected form of expression. It has also led many officers to stop, question, interfere with and detain those recording on city streets in an unrealistic and expanded view that automatically equates photography with terrorist or criminal surveillance.
Once again the general rule for photography is: where there is public access in such traditional public forums as a sidewalk or a park you are permitted to photograph anything in plain sight (i.e. buildings, people) because in such places there is no "reasonable expectation of privacy." In other areas that are generally open to the public but maybe privately owned such as a mall, recording may be restricted either by posted signs or by mall personnel. In order to avoid confrontations it is always a good idea to check with property owners to obtain permission before taking pictures.
There is also a very big distinction between photographs taken for editorial (journalistic) purposes and those made for commercial gain (advertising or product sale). Depending on the type of photography in question, many parks and transit systems require those wishing to take pictures to obtain a permit in advance. Usually such permits require that a fee be paid and that proof of insurance be provided. Another important difference is the need for model releases when photographing someone for commercial purposes. It is very important to remember that just because you may have a right to photograph something or someone does not mean you have a right to use that material in any way you choose, even when shooting in a public place.
The National Press Photographers Association (NPPA) has been involved in many of the incidents mentioned above. For a list of resources regarding your rights go to: http://nppa.org/member_services/advocacy/restrictions_on_public_photography.html.
DISCLAIMER - This blog is not intended to be legal advice nor does it create an attorney-client relationship. Laws and regulations vary from one area to another and federal, state or local laws may apply. Anyone seeking legal advice should contact an attorney in their area of the country familiar with these types of situations and First Amendment Law.
Mickey H. Osterreicher is of Counsel to Hiscock & Barclay, and serves as general counsel for the National Press Photographers Association (NPPA). The NPPA is a non-profit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA's almost 7,000 members include photographers, editors, students and all those interested in photography willing to abide by a code of ethics. Since its founding in 1946, the NPPA has vigorously promoted the constitutional rights of journalists as well as freedom of the press in all its forms.
Posted by Toby Morrison — 23 Apr 2012
Hasselblad has launched Phocus 2.6.6 * - a brand new version of its intuitive Phocus software, plus a new feature-rich Phocus Mobile 2.0 format for iPhone, iPad and iPod Touch.
Phocus Mobile enables wireless camera control - and the latest 2.0 version includes a host of new elements plus added access control.
Explained Peter Stig-Nielsen, Hasselblad Product Management Director: "Many discerning photographers across the world are already familiar with the sheer power and performance of this highly intuitive software package and this spring launch of Phocus 2.6.6 and Phocus Mobile 2.0 will make their imaging work more effective. Photographers can be wirelessly linked to a computer running Phocus - and now with the new 2.6.6 version, any number of Phocus Mobile clients can connect to the Phocus server simultaneously."
Phocus Mobile 2.0 significantly improves options for photographers to show and share their work during a shoot and also includes a 100% zoom function of images in the file browser; new GPS tagging; folder access control and a Demo Mode functionality. And all this is now available as a free download at the App Store."
Hasselblad says the innovative Phocus 2.6.6 software upgrade "provides uncompromising image quality and allows photographers to work quickly, efficiently and creatively with the world's most advanced image files."
Peter Stig-Nielsen added: "There is no question that Phocus 2.6.6 with Phocus Mobile 2.0 offer new functionality and innovations that will expand the options and speed up the workflow for time-pressed photographers."
Features in Phocus include:
• Hasselblad Natural Color Solution (HNCS).
• Sophisticated lens corrections for H and V System lenses.
• Advanced tethered camera control.
• Easy- to-use interface.
• Extensive customization options for individual workflow
scenarios.
• License-free software with unlimited installations and no
registration issues.
• Live video.
• Scene calibration and reproduction tools.
• Highlight recovery, shadow fill, clarity and dust
removal tools.
For more information go to:
www.hasselblad.com/promotions/phocus-mobile-20
* for Mac OS only.
Posted by Toby Morrison — 18 Apr 2012
Think you have what it takes to impress Tim Burton? You could win a private midnight screening in your hometown!
Lincoln contemplates. by Matthew Vollman
20th Century Fox challenges fans to depict their allegiance to either
our patriotic hero Lincoln or to villainous vampires through creative images . The five top entries will be presented to the famed
director, who will then pick the grand-prize winner!
Whether
submitting their own art, voting on the submissions or viewing and
sharing the artwork, fans are invited to participate in this hunt for
the best candidates!
Abraham Lincoln by Sandi Marasco
All styles are encouraged; cartoon, photo, paint, sculpture, graphic design etc. Real or imagined, we leave the vision and interpretation up to the artist.
CONTEST RULES
- Submit your own pro-patriot or pro-vampire artwork to the gallery at www.Facebook.com/Vampirehunter
- All Submissions due by May 12, 2012
- Popular vote will decide the top five finalists
- The winning finalists will be selected by Tim Burton
- One Grand Prize Winner will receive a private midnight screening
- Four runner-ups will receive a Tim Burton signed movie poster
Abraham Lincoln: VAMPIRE HUNTER
In Theaters June 22, 2012
To learn more about Abraham Lincoln:Vampire Hunter:
http://www.movieweb.com/movie/abraham-lincoln-vampire-hunter
https://www.facebook.com/vampirehunter
https://twitter.com/AbeTheHunter
http://www.youtube.com/vampirehuntermovie
#VampireHunter
Posted by Justin Case — 11 Apr 2012
As many of our long-time JPG users will attest, we like to reach out when we find great opportunities for our users, members and any photographers that stumble upon the site to participate in contests, challenges and competitions that might provide reward and/or recognition to their work.
We found out, this week, about one such competition being produced by our friends at Artists Wanted.
Over the past five years Artists Wanted has provided over $1.5 million
in cash and awards to artists, photographers and designers like you.
This summer
Chashama and the
Times Square Alliance is working with
Artists Wanted
to present artists from around the world in brilliant lights on a
massive scale in one of the most iconic locations in the world.
You are invited to participate in: Art Takes Times Square .
Without further delay, take a few minutes to check out what will be the largest exhibition in New York City (and
enter, participation is
free -- the next featured artist will be selected in less than 24 hours):
Your photographs, larger than life.
Showcase your work in the largest, brightest, most dramatic venue on the planet.
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You're invited to join Art Takes Times Square, a competition searching for inspired works by photographers, artists, designers and all creative talents from across the globe, to identify one visionary whose works will transform the most visited attraction in the world into a brilliant, spectacular exhibition. Participation is free, click here to learn more >>
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International Publicity + The World's Most Immense Exhibition + $16,000 in Grants
(All this can be yours & participation is free.)
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Hurry and get your entries in,
the next featured artists will be selected in less than 24 hours!
Posted by Cathaleen Curtiss — 2 Apr 2012
We all know the saying "A picture is worth a thousand words". But what if the picture isn't quite the truth? Or what if the picture is taken out of context?
This has been a topic of much debate over the last month, as countless news organizations, institutions and blogs discuss the use of certain photos depicting Trayvon Martin and George Zimmeran. Most media organizations used a photo of Martin smiling at the camera in a red t-shirt, slightly younger than his actual age. For George Zimmerman those same outlets chose his 2005 mug shot, when he too was a younger man. Other photos exist of both men that more accurately reflect their ages.
The difference is, in the age appropriate photos seen here, in
The Inquisitr, Trayvon Martin does not appear as innocent and George Zimmerman does not appear as sinister.
This is not the place to argue, right or wrong. That should be left to the courts to decide. Instead let's talk about the power of a photograph to influence people and change perceptions. As photographers we all need to be aware just how powerful our images can be and how they can be used, and sometimes even misused.
Years ago, as a very green newspaper photographer I was sent to photograph a woman and her three children. It was a very difficult and sad story, the father had recently died, the young mother was unemployed, alone, struggling to make ends meet, and provide for her children. This was supposed to be the kind of story that might encourage the community to help this family. Instead, readers reacted with disgust. They penned letters to the editor in outrage. Why? Our readers were upset because in the photograph of this desperate family, the mother was smoking a cigarette. It was a lesson for me of how easily a photograph or a small element of a photograph can influence perception.
In September 2010 the International Center for Photography created an exhibition that showed the influence of photography in encouraging the revolutionary movement in Cuba.
Politicians have long known the power of a photograph. Just think of the photo of Michael Dukakis wearing a helmet in his 1988 presidential bid.
There was considerable discussion about media bias after Hurricane Katrina in 2005. It is not uncommon during major news events for several photographers from competing news outlets to end up in the same place shooting the same thing. Journalists often travel together for safety, shared expense, connectivity and because that is where the story is. In his 2007 essay on Hurricane Katrina, JPG contributor Erin Clark pointed out areas impacted by the storm that did not get mainstream media coverage.
How and why we create photographs often depends on who we are working for. Is it an editorial assignment that requires the strictest
adherence to objective documentation? Is it a photograph for commercial or advertising use? Is it for art, where your imagination is set free to create? Or are you an advocate for a cause where you control and guide the message? In my opinion they all benefit from integrity, truth and adherence to your vision.
The challenge is balancing how you envision the photo while being fair to the subject and still satisfying the demands of your viewer or client. New York TImes photographer Stephen Crowley has managed this difficult task brilliantly while covering the American political scene with his latest column "Smoke Filled Rooms".
Unfortunately, sensationalism sells and because of this you should always make sure that the entity
with whom you are working accurately represents your vision.
As media outlets vie to illustrate the stories of the moment - it is wise to remember - when we make our own images, to search for truth, to be fair and to recognize that most stories and photos have more than one side.
Posted by Cathaleen Curtiss — 26 Mar 2012
Most of us own a hoodie, we wear them on cool nights walking our dogs, with a cup of tea on a rainy day and in support of our favorite teams. Recently they have taken on a new meaning.
From Seattle to Atlanta, Philadelphia to Phoenix thousands of people gathered this weekend to raise awareness of the Trayvon Martin shooting on February 26. Most participants wore hoodies, similar to the one 17-year-old Trayvon was wearing the night he died.
Celebrities from the Miami Heat, Will Ferrell, Sean Combs and many more have expressed their support by wearing hoodies, joining rallies and tweeting their thoughts.
We have gathered a collection of our favorite Hoodies photographed by JPG contributors over the years. They reflect a statement made by the Reverend Oscar Tillman at a rally in Phoenix, AZ, "This is not about Black or White or red, green or yellow. This is about a young man on his way back to meet with his family."
Show us your favorite hoodie photo.
Joe by Northline
Chris by Blake Coble
Hooded by Tonya Doughty
Looking now and forward. by Jason Kim
The orange hoodie by Bret Scovill
BRONX BELLA HOODIE... by Michael Yagoda
Hood sweater by Ernst Vikne
Ryan II by Blake Coble
in the hoods by Marjolaine Richards-Deviq
Contribute your own Hoodie photo in support of raising awareness of the Trayvon Martin shooting.
Posted by Mickey H. Osterreicher — 11 Mar 2012
A growing number of states have been proposing and enacting new legislation ostensibly intended to protect farm businesses from outside interference but could have significant impact on Photography/Recording.
Dubbed "ag-gag" bills for the way in which they gag media coverage of agricultural operations, these laws criminalize certain activities such as recording an image of, or sound from, an agricultural operation; obtaining access to or employment at an agricultural operation under false pretenses; possessing or distributing such recorded images and sounds; and photographing or recording farm activities without permission.
These "feel-good" bills have been introduced in a number of states including but not limited to: Indiana (SB 184), Florida (SB 1184/HB 1021), Minnesota (HF 1369/ SF 1118), Missouri (SB 695), Nebraska (LB 915), Illinois, Iowa, Utah, and New York (see below for these).
The Illinois Judiciary Law Committee just tabled HB 5143, and in Florida the Senate Agriculture Committee and House Criminal Justice Subcommittee removed a provision from SB1184/HB 1021 that they believed violated free speech.
But Iowa recently enacted such a measure, making "Agricultural production facility fraud" a crime punishable in escalating degrees with penalties ranging from fines and restitution to imprisonment. Under HF 589 a person is guilty of violating the law if he "willfully . . . obtains access to an agricultural production facility by false pretenses;" lies on an employment application in order to gain access to the facility with the intent to "commit an act not authorized by the owner . . . knowing that the act is not authorized."
This law is far different from the bill originally proposed (which specifically prohibited recording, possessing and distributing images and sounds from an animal facility without the consent of the owner), but as enacted is still broad enough to chill First Amendment protected activities.
A similar bill passed by the Utah state senate last week. HB 187 "establishes the crime of agricultural operation interference" and provides that a person is guilty of such crimes if, without proper permission and under certain circumstances, he "record[s] an image of, or sound from, the agricultural operation." The legislation also provides increased penalties for trespassing when a person is found guilty while also engaged in presumptive free speech activities such as photography.
In New York, S5172 would "amend the agriculture and markets law, in relation to unlawful tampering with farm animals" by criminalizing "unauthorized video, audio recording or photography done without the farm owner's written consent."
What is of heightened concern is that the bill as written is so broad as to include photography and recording made from public property of "any building, structure, vehicle, pasture, paddock, pond, impoundment area, land or property upon which farm animals are housed, cared for, grazed or bred." A resulting misdemeanor conviction could be "punishable by a term of imprisonment for up to one year or a fine of up to one thousand dollars."
While many groups, including NPPA, have objected to these bills, it is believed that the opinion by the Supreme Court in U.S. v. Stevens,
striking down a federal law which criminalized the commercial
production, sale, or possession of depictions of animal cruelty as
unconstitutional under the First Amendment, has been the underlying
reason for subsequent changes to the "ag-gag" bills.
Photographers should also be aware of other recent legislation that could make them subject to arrest and prosecution. Illinois
HB 5099 would
prohibit "use of a wireless telephone while operating a motor vehicle
within 500 feet of an emergency scene (defined as "a location where an
authorized emergency vehicle . . . is present and has activated its
oscillating, rotating, or flashing lights")." An exception to the law
would be if the device was being operated in hands-free mode or being
used to call police.
The
bill also "adds digital photographs and video to the definition of
'electronic message' in provisions prohibiting the use of electronic
communication devices while operating a motor vehicle." This would
effectively mean that any Illinois laws banning the use of those devices
for making phone calls, sending emails and texts or surfing the web
while operating a motor vehicle (which could include "standing,"
"stopping" or being parked) would now also prohibit using that device to
take photos or record video.
A more favorable bill has been proposed in Connecticut. An Act Concerning the Recording of Police Activity by the Public, S.B. 245,
provides that "a peace officer who interferes with any person taking a
photographic or digital still or video image of such peace officer or
another peace officer acting in the performance of such peace officer's
duties shall . . . be liable to such person in an action at law, suit in
equity or other proceeding for redress." While the bill also contains
limitations and exclusions, if enacted it would allow citizens to sue
police or bring criminal charges against them for interference. The
legislature is currently holding hearings on this measure.
HR 347
also known as The Federal Restricted Buildings and Grounds Improvement
Act of 2011 was signed into law on March 8, 2012, making it a federal
offense to cause a disturbance at certain events. More specifically,
anyone who trespasses on specified property or at times and locations
"so restricted in conjunction with an event designated as a special
event of national significance" may be prosecuted and subject to a fine
or imprisonment or both.
Under
this "Trespass Bill" anyone "knowingly" entering a restricted area
under Secret Service control who "engages in disorderly or disruptive
conduct" or "who, with the intent to impede or disrupt the orderly
conduct of Government business or official functions, obstructs or
impedes ingress or egress to or from any restricted building or grounds;
or knowingly engages in any act of physical violence against any person
or property in any restricted building or grounds; or attempts or
conspires to do so, shall be punished" accordingly.
As
the election primaries continue and with the upcoming NATO Summit and
national political conventions, it is not hard to imagine that citizens
and journalists may be threatened, interfered with and arrested under
this statute while doing nothing more than taking pictures or recording
if such activity is perceived as a disturbance or threat.
In
a country that prides itself on freedom and the unalienable rights of
Life, Liberty and the pursuit of Happiness, it can only be hoped that
the detrimental statutes discussed above would not be used by the
government to infringe on constitutionally protected activities; but
nevertheless it is critical for everyone to be mindful that such laws
exist.
Posted by Mickey H. Osterreicher — 19 Feb 2012
After writing about "terms and conditions" for use of photos in my previous blog it became obvious that a discussion of copyright was also needed. Copyright is a vast area of law, even when limited to just questions about photography. The issue came up this past week when a certain type of meme (a concept that is disseminated via the Internet) started appearing on Facebook, many coming from Mashable. One such meme dealt with photojournalists.
This appears to be a format where the copy remains relatively the same (except for the subject) with the photos inserted from those found on the Internet and used for the most part without permission, credit or compensation to the photographer. Everyone thinks that they are cute and innocently passes them along but unfortunately they are prime examples of copyright infringement. Some have been taken down, but for the most part they have gone viral with some discussions on Facebook and other sites. The NPPA president even wrote a blog about the phenomena.
All of this leads to a timely discussion about copyright. The U.S. Copyright Office maintains a very extensive website and answers to almost all questions may be found there. In the interest of brevity I will provide a brief overview to current copyright law as it pertains to photography. Copyright is part of federal law. Published and unpublished photographs may be protected and registered. It is unlawful for anyone to violate (infringe upon) the rights of a copyright owner. A case of copyright infringement may only be heard by a federal court.
Occasionally, what appears to be an infringement is actually permitted under an "exception" to copyright law known as "fair use." As a general rule copyright attaches and belongs to the person creating the image once an idea has been reduced to tangible form, such as in a fixed medium (i.e. film, videotape digital file). One of the exceptions to this rule is if the photograph was created a s a "work made for hire" (i.e. you take a picture as an employee of a newspaper - where your employer owns the copyright). Usually when you allow someone to use one of your images you are giving them a license which defines and limits the terms of that use (see my previous blog discussing terms and conditions).
Some photographers rely solely on the concept that they own the copyright when the image is created but then fail to register it with the Copyright Office. When an image is not registered the photographer has just limited the amount she/he can recover for any infringement and may also not be able to recover attorney fees.
Under 17 USC Section 504 titled "Remedies for infringement: Damages and profits" an infringer of copyright is liable for either the copyright owner's actual damages and any additional profits of the infringer; or statutory damages. The same section sets forth "Actual Damages and Profits." It states that "the copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.
In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work."
But if the image is properly registered as set forth in §504 under "Statutory Damages" "the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.
For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work." It also goes on to state that "in a case where the copyright owner sustains the burden of proving, and the court finds that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200." The court in its discretion may allow the recovery of full costs and attorney's fees by or against any party other than the United States or an officer thereof.
DR. MARTIN LUTHER KING, JR. FEDERAL BUILDING AND U.S. COURTHOUSE by
Mr. Kim HuffPhotographers should keep in mind that because any legal action for copyright infringement must be brought in federal court, it is usually very costly as most copyright lawyers will require a substantial retainer. Without a registered copyright the likelihood of recovery will be limited to actual damages and "any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages." Also without a registered copyright, recovery of attorney's fees is limited. Conversely, should a photographer lose a copyright case they may be liable to pay the attorney fees of the infringer which could be substantial.
As a general rule all photographers should register their work in a timely manner pursuant to the guidelines issued by the US Copyright Office. When registered within ninety (90) days from the date of creation of the image, photographers may still be entitled to claim statutory damages and attorney's fees should an infringement occur. When a photographer becomes aware of an infringement of their work, they should contact the infringer in writing. This may be done directly or through an attorney.
The photographer or her/his attorney should identify the work; state how it is that the photographer owns the copyright to the work; that the work was used without the photographer's permission; and that the infringer must cease using the image. These statements may usually be found in a cease and desist or takedown letter. A photographer may also send an invoice for a reasonable amount they believe would compensate them for the infringement. If the infringer does not respond or comply, the photographer should consult with a lawyer (if they have not already done so) to determine whether legal action is warranted and/or economically feasible.
Another federal statute that is helpful, especially for copyright infringement on the Internet, is the Digital Millennium Copyright Act (DMCA). Under this law, although an Internet Service Provider (ISP) may not be liable themselves for infringing material posted on their sites, they are obligated to remove (takedown) that material once they have received notice from a copyright holder in the proper form (DMCA Takedown notice). Under this statute a photograph does not have to be registered with the U.S. Copyright Office in order to issue the notice.
Directions for using the provisions of the Act and a sample DMCA Takedown Notice may be found at
http://nppa.org/member_services/advocacy/copyright_protection.html. Also see
Cariou v. Prince for discussion of a recent case involving infringement, fair use and a very large damage award.
N.B. The information provided above is general in nature and does not answer or address all situations. As with any legal matter it is always best to consult directly with an attorney before taking any action.
Brief Notes:
• NPPA recently submitted comments to the U.S. Copyright Office on Copyright Small Claims for those situations where bringing a large federal civil action may be cost prohibitive.
• NPPA was also instrumental in helping a photographer who had been prevented by the U.S. Bureau of Land Management (BLM) from photographing wild horse round-ups in the Western United States.
• NPPA sent a letter to the Baltimore Police citing a violation of policy concerning recording of police activity
EDITOR'S NOTE: All photos included in this blog are used in accordance with JPG's Terms of Use.
Posted by Mickey H. Osterreicher — 8 Feb 2012
I started to write the latest installment to my blog on 1/30/12 with
these words - "when I started writing I had only intended to do a blog a
month or one every two weeks but so much happens every week that I feel
the need (and will do my best) to write at least once a week so that
some things don't get old." A week later so much has gone on that needed
immediate attention that I am just now getting back to it and you.
Two weeks ago I was in NY to participate in a panel discussion
entitled "Newsgathering Practices and Issues in the Digital
Communications Age." One of the areas we touched on were the use of cell/smart phone as reporting tools along with the dangers and advantages of posting on social media websites
That led to the case of AFP v Morel,
in which Daniel Morel, a photographer in Haiti during the 2010
earthquake, uploaded some of the first photos of the disaster to
TwitPic.com by linking them to his Twitter account. He claimed that
because of the country-wide devastation of electricity and Internet
connections he was forced to use this more public method.
In the
lawsuit, Agence France Presse (AFP), sought a declaratory judgment that
it had not infringed upon Morel's copyrights. Without getting into the
complicating issues of the case (which you can read about on your own)
suffice it to say that Morel claimed that AFP distributed his images
without his permission, while AFP argued that in posting his photos
Morel had agreed to Twitpic's terms of service, which in turn provided
AFP with a license to distribute those images.
As a cautionary tale about just how important it is to read and
understand any Terms of Service (TOS) before clicking "agree" read the
following, which were the Twitpic TOS at the time that Morel uploaded
his images: "by submitting Content to Twitpic, you hereby grant Twitpic a
worldwide, non-exclusive, royalty-free, sublicenseable and transferable
license to use, reproduce, distribute, prepare derivative works of,
display, and perform the Content in connection with the Service and
Twitpic's (and its successors' and affiliates') business, including
without limitation for promoting and redistributing part or all of the
Service (and derivative works thereof) in any media formats and through
any media channels."
You should also read the
current TOS which have been substantially modified, due in large part to this case.
For those of you who might not have heard this before. It is crucial
that you read any and all agreements before signing them. Would anyone
agree to buy a car or a house without knowing such things as what kind
of car? The address and description of the real property (house and
land)? How much it will cost? What the interest rate will be? How many
payments? Any penalty for early payment? The same is true when making
agreements on the Internet. There may be no written signature involved
but by clicking the radio button marked "agree" or "continue" or just by
using the service you are agreeing to be legally bound to the terms and
conditions set forth in that agreement in the same manner as if you
signed your name in ink on a paper contract.
An important difference is that on almost all paper contracts in
writing, the terms and conditions are set forth within the "four
corners" of the documents that makeup the agreement and may not be
altered, modified or changed unless agreed upon in writing by both
parties. BUT if you read most digital agreements found on the Internet
they state: "This policy may be updated from time to time for any
reason; each version will apply to information collected while it was in
place. We will notify you of any material changes to our policy by
posting the new Policy on our Site. You are advised to consult this
Policy regularly for any changes." That means the responsibility is on
the user to make sure that they stay abreast of any changes to policies
or terms of service rather than assume that the Site will inform them.
Additionally most Sites have two (2) separate areas to read. The first
being the "Terms of Service" (TOS), "Terms & Conditions" (T&C)
or just "Terms" and the other being a section called "Privacy" or
"Privacy Policies." They are almost always found as a clickable link at
the bottom on the webpage.
Continuing to review the Twitpic TOS (just as an example because we
started there and not because it is better or worse than any other Site)
I will do my best to generally explain what most terms mean BUT once
again must stress that if you are unsure of the terms of any Site you
should consult with a competent attorney in your city or state who
practices in the field of contract law and intellectual property rights.
"By using Twitpic.com, you signify that you have read, understand and
agree to be bound by these Terms and conditions" should be very
self-evident language that sets forth what I explained above.
"You agree to indemnify and hold Twitpic, its officers and employees
exempt from any claim or demand, including reasonable attorneys' fees,
made by any third party due to or arising out of Content you submit,
transmit, post or otherwise make available through Twitpic" this means
that should Twitpic or anyone associated with them be sued for any
reason due to any actions on your part in your use of their service they
are entitled to have you pay for an attorney to defend them and also
pay for any fees or damage wards that they are liable for. This can
sometimes be an astronomical amount.
Additionally under the "Choice of Law and Forum," should a legal
claim arise between you and Twitpic, that case shall be heard in a
Dover, Delaware court and be decided under Delaware law no matter where
you live or reside, which can be a major inconvenience for you by
itself. Also under the "Statute of Limitations" any legal claim you may
wish to bring "must be filed within one (1) year after such claim or
cause of action occurred or you will be absolutely prevented by law from
suing Twitpic.
If you are the actual owner of certain content (images), then you retain
the copyright to that content BUT "by uploading content to Twitpic you
give Twitpic permission to use or distribute your content on Twitpic.com
or affiliated sites." That "grant" is further defined as "worldwide,"
(for use anywhere in the world), "non-exclusive" (meaning you may give
others permission to use your content, not just Twitpic), "royalty-free"
(meaning they do not have to pay you anything for the use of the
content), "sublicenseable and transferable license" (meaning that
Twitpic may in turn license your content to someone else while still
retaining the right to the content for themselves or may transfer the
right to your content to someone else without retaining any rights to
it; in any event they may also be paid for the rights they are granting
without having to pay you).
With that permission from you, Twitpic may: use, reproduce,
distribute, prepare derivative works of (alter your content), display,
and perform your content in connection with what Twitpic does as a
business along with what Twitpic's other affiliated businesses or
successors (should they sell or transfer the company) do. They may also
use your content to promote or redistribute part or all of their
business in any media formats (such as DVD) and through any media
channels (such as movies and television).
By agreeing to the terms you are allowing other Twitpic users a
non-exclusive license to access your content on Twitpic as well as to
use, reproduce, distribute, display and perform such content as
permitted under these terms. Once you remove or delete your content from
Twitpic, the company must also stop using it in "a commercially
reasonable time" BUT if they have already granted someone else a
sub-license to use, reproduce or distribute your content prior to your
actions that person may still retain perpetual and irrevocable
permission to continue using your content.
Even after removal Twitpic may retain, "but not display, distribute,
or perform," server copies of your media that have been removed or
deleted in case a later legal issue arises. Additionally, any comments you
submit to Twitpic may be used by them forever and you may not revoke
such permission.
They also set forth the procedure for addressing alleged copyright
infringement claims and for disputing those claims pursuant to the
Digital Millennium Copyright Act ("DMCA') and that if you fail to
"comply with all of the requirements" as stated your claim or
counter-claim may be invalid.
One last thing before moving on (and we do need to move on) - for
those who don't already know the Twitpic case now involves Getty Images,
while other news organizations such as CNN, ABC and CBS (who also used
Morel's images) have already settled with the photographer for
"undisclosed amounts." More legal papers are expected to be served by
April with a trial scheduled for this summer.
After the panel in NY I traveled to Washington DC and spoke at the National Press Club regarding the "Ongoing Assault on the Right to Photograph/Record in Public" where I spoke about the ongoing tension between the press and government regarding news coverage of matters of public interest.
It was very well received but that night I had a much tougher crowd
when I did a 4 hour training with about 40 officers at the D.C.
Metropolitan Police Department Training Academy. As you might expect
they were very skeptical at first but eventually warmed up after viewing
a number of videos that I had collected showing what police officers
should not do when faced with someone with a camera. With the
assistance of PIO Gwendolyn Crump I believe we were able to create a
better awareness of the First (speech/press) and Fourth (search &
seizure) Amendment rights of citizens and journalists.
Once
back home there was a new flurry of activity, incidents and arrests
involving NPPA members (photographers) throughout the country. In
Florida police
arrested Steve Horrigan as he was filming a traffic stop with his cellphone. He was charged with the
interception of oral communications and also "
Resisting officer without violence to his or her person."
Steve's cell phone was also seized "as evidence." I had conversations
with North Port Police Department Chief Kevin Vespia and hope to have a
resolution to that matter sooner than later. Meanwhile in Memphis an
ABC24 photographer allegedly
had his video deleted by officers who detained him for recording police
writing parking tickets. I expect to hear back from Memphis Police
Director Toney Armstrong this week.
The ongoing issue of interference with the press by NYPD officers was back in the news as
a coalition of media groups including NPPA, sent another letter to the
Deputy Commissioner for Public Information. We received an almost
immediate reply after waiting almost 2 months since the last letter
sent. To round out the week, well-known blogger (Photography is Not a Crime) and NPPA member, Carlos Miller was also arrested
while on assignment covering an Occupy Miami protest. Aside from the
unlawful arrest he believes that officers deleted some of his video
clips while the camera was in their custody. As you may note from some
of the links Carlos and I work very closely together as he is a
clearinghouse for reports of incidents like these around the country.
These are just a few of the reasons that I believe that the war on
terrorism has somehow morphed in to war on photography. It is something
that I deal with on a daily basis but I don't want it to be my sole
focus for this blog. That's why I think it so important that I hear from
you as to what issues you'd like me to focus on and discuss and what
questions you would like me to answer. Just let me know and I'll gladly
do it as soon as I can catch my breath.
Posted by Mickey H. Osterreicher — 24 Jan 2012
First, I would like to acknowledge the tremendous response to my first blog. It is always nice to receive positive recognition and feedback and to know that there is an interested audience.
Since my first post it has been another very hectic week as photographic and legal issues collide. NPPA protested the arrest of one of its members, San Diego freelance photojournalist, Edward R. Baier, who was arrested while covering a news story. What was almost as much concern was the seizure of his camera and recordings. After receiving our letter police returned the camera and began an internal investigation of the incident. We also objected to a transit system's website containing language that equated photography with terrorist activities. The objectionable language was immediately taken down.
NPPA also submitted comments in response to a request from the U.S. Copyright Office for suggestions as to how photographers might recover small economic value copyright claims in federal court. At present most claims for photographic infringement cost more to commence than the actual damages sought.
Additionally, in response to NPPA correspondence, the District of Columbia Attorney General has issued revised guidelines for "Street Photography" in our nation's capital after NPPA expressed concern that the prior regulations could have been misinterpreted to the detriment of photojournalists and others taking photographs in Washington.
On a lighter note, that also implicates legal, ethical and esthetic concerns, I was fortunate enough to attend the opening of two shows at the International Center of Photography (ICP) while in NYC. The first,
"Weegee: Murder Is My Business" is a huge show. While I credit Weegee to some degree with my becoming a news photographer and monitoring police scanners in order to get to spot news stories, (this is a photo of me in my car with all my scanners when I was a daily news photographer) seeing so much of his work all at once was almost "overkill."
The 1930's and 40's was a time when an NYPD Press Pass actually allowed the bearer to cross police and fire lines, but for Weegee those lines probably never even existed. Another line that he often crossed with impunity was the "set-up" photo. Today such journalistic misbehavior would bring about immediate dismissal. On the other hand, his relationship with the police was far better than it is for most press photographers today.
Weegee not only had a reputation for being "prescient" (hence the name Weegee from Ouija board) about being at the right place at the right time but he was a predecessor to Cindy Sherman by appearing in a number of his own photos - standing-in for suspects, detectives and a wide range of characters. Viewing the yellowing, long-gone publications under glass reminded me of a time when not just the newsprint was that color. With his fedora, Speed Graphic, flashgun and ever present stogie, Weegee created the stereotype that news photographers are still trying to live down.
The other show that opened at the ICP was The Loving Story: Photographs by Grey Villet. It was so interesting to note the difference in styles and temperament between the short, squat and flamboyant Arthur Fellig (a/k/a Weegee) and the tall, lanky and almost invisible Grey Villet, whose insightful photos of Richard and Mildred Loving and their family were an oasis of solitude - tucked away in one small room and almost lost among the big brash splash given to Weegee. Their styles of photography were as different as their body types and personalities.
Villet was able to capture the love shown by an interracial couple whose marriage and courage led to the landmark 1967 US Supreme Court decision in Loving v Virginia, striking down Virginia's anti-miscegenation law and in so doing declaring as unconstitutional all bans on marriage between the races throughout the US. Using only available light Villet documented poignant moments. His photos stand in stark contrast to Fellig's flash on camera.
Barbara Villet discusses her husbands work at the ICP show, The Loving
Story: Photographs by Grey Villet. (Mickey Osterreicher)
Just as interesting as the photos themselves were the way that the respective publications used the pictures. Life Magazine ran what appears to be the least compelling and noncontroversial of Grey's take. Today viewers are lucky to see the "outtakes" which are far more moving. Almost 30 years before, Life Magazine and the NY dailies were not at all squeamish about publishing photos of dead bodies and other carnage captured by Weegee, who then compiled them in a 1945 book aptly titled Naked City. It was truly a wonderful evening of contrasts in black and white on so many levels and made me truly appreciate how the photography and the law have been partners and adversaries for a very long time.
The NY Times Lens Blog reviewed both shows -
Weegee runs through September 2, 2012 so there is plenty of time to see it, while
Loving Story only will be up through May 6, 2012.
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