Photography & the Law - Beyonce' and Beyond: A Roundup of Recent Legal Issues

Posted by Mickey H. Osterreicher — 19 May 2013

Sorry that it has been so long since my last post. There has been so much going on it is hard to know where to start. The National Press Photographers Association (NPPA) has been involved in many issues.

Beyonce @ Live8 by Albert Yee

Most recently the NPPA sent a letter to the publicist for Beyoncé on behalf of 19 media organizations objecting to her 2013 World Tour Guidelines for photography and television. The new policy came as a result of the publication of some "unflattering" images of the star 's performance during this year's Superbowl. In place of photo credentials the tour has provided a Web link where those wishing photographs of the performance must first register before being able to download or use her self-produced hand-out images of each stop.

Beyoncé and her management team are certainly free to propose any guidelines they wish; but the NPPA, supported by many other news organizations believes that providing her own hand-picked handout photos rather than allow independent press coverage is wrong. While in the greater scheme of things a concert photo is not a big deal we see this as the start of a new trend where those in the news such as celebrities, sports teams and politicians are trying to exercise complete control over their images and message. When news media post, publish or broadcast this type of subject provided content they relinquish their public service responsibilities and become complicit in traveling down the slippery slope where independent reportage becomes irrelevant.

It is an artist's prerogative as to whether or not they will allow photography of their performances. A photo ban is one thing but it appears that Beyoncé wishes to have her cake and eat it too. She still wants photographic coverage but only wants to release images of her own choosing. The NPPA believes that this is improper and we have said so in our letter to her publicist.

Beyonce by Brian Ach

We also believe that once it becomes apparent that news organizations are willing to accept this type of policy and use handout photos it will only encourage others to follow suit. The danger in this type of "infotainment" is that the public will be denied the information and images that come from independent newsgathering and the media will be relegated to being nothing more than aggregators of sanitized material provided by public relations firms and press secretaries. This point is best illustrated in a joint protest by the NPPA and the White House News Photographers (WHNPA) Association regarding the photo manipulation of an official photograph made available for distribution by House Minority Leader Nancy Pelosi's office.

In another recent case in New York City, photographer and artist, Arne Svenson, is selling photographs he took of his neighbors living in apartments across the street at an art gallery. The exhibition entitled "The Neighbors," has caused much concern from some of those depicted, even though their faces were not shown. Others are considering legal action, according to reports in the AP and the New York Post.

This raises a number of legal questions regarding the privacy rights of the subjects vs. the First Amendment rights of the photographer. In New York, those rights have been clearly established for photographs taken on a public street, but what is less certain is how the courts might view photographs of inhabitants taken through an apartment window. One of the things that distinguishes public from private is that in public, you have no reasonable expectation of privacy whereas you do in your own home or apartment.

Mr. Svenson is not the first photographer to capture and sell these types images. Michele Iversen has been shooting in a similar fashion since 1995, as was reported in 2010. Ultimately it may be up to the courts to decide whether Svenson could be the poster child for what not to do as a photographer or whether he has now pushed the envelope in broadening the legal limits on "street photography." Other countries have different rules as can be seen in a recent discussion in the NY Times Lens Blog.

Over the past few months the NPPA has objected to a number of ag-gag laws, the most recent of which was vetoed by Tennessee Governor Bill Haslam after receiving a ten page opinion from his attorney general that it was "constitutionally suspect."

One of the concerns was that the proposed law contained a mandatory reporting clause that required people to turn over their unedited images and recordings to police within 48 hours of taking them. This is considered by many to be a prior restraint on the press and an infringement on First Amendment rights, not to mention the Fifth Amendment right against self-incrimination as well as a violation of due process rights under the Fourteenth Amendment.

capitol reef, old mormon farm by antonio chiumenti

Utah looked like it was going to be the first state to prosecute a citizen under its law for recording video of an agricultural site from a public place but prosecutors dropped the charges on the eve of the trial after widespread reporting on this matter.

The Wave by Traci Cottingham

A Hawaii anti-paparazzi law that could have been applied to anyone with a camera was also defeated. Known as the "Steven Tyler Act," the proposed bill attempted to create a "constructive invasion of privacy," thereby creating civil penalties for people talking pictures of people in public, where they would normally not have a reasonable expectation of privacy. The NPPA has also been successful in having a sponsor withdraw a similar bill in California.  Where they were attempting to add greater civil penalties for traditionally protected First Amendment activities such as photography under the guise of strengthening an existing California anti-paparazzi law.

The NPPA also worked with the New Mexico Department of Homeland Security to amend it polices regarding photography after receiving complaints from some of our members concerning problems taking pictures of "historic structures and national landmarks" and other subjects.

At NPPA urging, the U.S. Justice Department filed a statement in support of photographer Mannie Garcia's federal civil rights lawsuit against Montgomery County Maryland police for its unlawful arrest.

Not only is the right of access important, but so too is the right to be able to protect those images from being used without permission, credit or compensation. It is for that reason (among others) that the NPPA joined in a copyright infringement lawsuit against Google. 

"The NPPA takes the issue of copyright violation very seriously," said NPPA executive director Mindy Hutchison. "In our primary role as an advocate for visual journalists, it was only natural to join with others to challenge this widespread and ongoing infringement. It is our intention to stop this practice, and protect the rights of our visual journalists, along with their ability to control, license, and sell their own images."

The NPPA will to continue to educate the public and advocate on behalf of photographers for access and protection of their work. You may learn more about the National Press Photographers Association on the website

« Exposure! Enter Today! | Copyright, Fair Use & Orphan Works: Legal Conundrums in the Use & Misappropriation of Photographs and Visual Images »