Between the Cross-hairs

Common Dreams sent out a press release from photographer Jeffrey Sauger today. The text can be read here. Mr. Sauger of Royal Oak, Michigan and Jim West of Detroit were both arrested in Toledo, Ohio two years ago while covering "a rally by a small group of Nazis outside the Government Center building." According to the release, the police out-numbered the Nazis and the counter demonstrators by 5 to 1.

"Sauger was arrested on a charge of 'criminal trespass' as he tood in a media enclosure carrying professional cameras and lenses photographing the scene. Police charged that he lacked a 'temporary media permit' that had been issued to some journalists earlier in the day. Arriving later, carrying his own press credentials, Sauger said officers had told him he didn't need the pass.

"West was arrested as he stood, alone, taking photographs near a line of horses that was being ridden past and through counter protesters. He was charged with 'failure to disperse.'

"Charges of disorderly conduct against a third news photographer, Jeffrey Willis of the Toledo Journal, have been dismissed. Willis was also arrested while photographing the police response to a crowd of anti-Nazi protesters."

I note these are still photographers, not videographers for a TV station. More than 20 years ago, I was harassed by the DC police while covering an event for the Washington Post. The TV cameramen standing virtually next to me were not bothered. I have always theorized that they could have been on TV instantly but the paper wouldn't hit the stands until hours later. In this case, I suspect Mr. Willis was backed up by his newspaper's lawyers, whereas Misters Sauger and West are from out of town and were freelancers. They didn't have corporate lawyers backing them up.

Photographers have enough to do when on these kinds of assignments and the last thing a pro would be doing is interfering with the actual events. So they must have been photographing things that the police didn't want covered. The press release says the photographers were photographing how the police were treating the peaceful anti-Nazi protesters.

So the police were supporting the Nazi demonstrators?

I haven't uncovered any other coverage of this by the main-stream media. That's not a total surprise. Who cares about the rights of a couple of freelance photographers anyway? I do wonder if the National Press Photographers Association or Photo District News has covered this in any way. I don't recall seeing any squib in ASMP's literature, either.

Freelance photographers are really alone out on the front lines. They can make really easy targets for frustrated police officers.

Just Because You Own a Copyright...

I've given lectures to lawyers about this one: just because you own a copyright, doesn't mean you can do anything you want with a picture, particularly if someone's face is recognized. This comes up today because some minor in Texas discovered a photograph of herself being used in a large advertising campaign in Australia. The photograph was taken by the girls church youth counselor and posted to Flickr.

It seems that people who are foolish enough to put their photographs up on Flickr for "sharing," are finding their photographs used commercially, which is what happened to this photograph. Some moron at Virgin Mobile Pty Ltd., in Australia released a statement that "The images have been featured within the positive spirit of the Creative Commons Agreement, a legal framework voluntarily chosen by the photographers. It allows for their photographs to be used for a variety of purposes, including commercial activities." Right. But the subjects of those photographs have rights which they have not necessarily conveyed to a photographer.

Ms. Chang's photograph is now being used to advertising Virgin Mobile. In the U.S., there is absolutely no blanket right to use someone's image this way without their express permission and the damages can be substantial. In one of the articles I read, Ms. Chang's lawyer has handled cases like this before (I'm glad to hear) and expects a substantial return. I did do some brief checking about Australian law, and it would seem that Ms. Chang's position there is similar to the way it is here in the U.S.

I am not so sure the photographer, who didn't grant explicit rights to the photograph, will make out quite as well, but then, I haven't read the Flickr agreement to see how many holes I might be able to shoot through it. The photographer is not being sued by Ms. Chang. Apparently Virgin Mobile USA is.

I do note that the case has been filed in a state court in Dallas, which is the right venue for Ms. Chang, but probably not the right one for the photographer. Even if his theory of the case has to do with a breach of contract issue (Flickr photographers "Creative Commons" agreement has something to do with getting credit for usage, which didn't happen), it would seem to me that would have to be subsumed by any copyright claim that would attach to this issue. I truly would like to see the pleadings in this case.

So, get a model release--although even then it may not be enough. A few years ago, a professional model won at judgment of $15.6 million when he discovered his face on a Tasters' Choice label. Despite the fact that he had been paid for a 2-hour shoot back in 1986, his contract must have had provisions for actual use. The company used the photographs in the U.S. and Canada for many of the intervening years until Russell Christoff ran across a jar in his supermarket. He was able to collect a percentage of company profits for a 6-year period. I don't know what happened on appeal, but the company could not have been happy. Even a settlement would set them back more than the offer they made early on.

I am interested in seeing whether this helps professional photographers who are having a hard time competing with rank amateurs these days because of the Internet. My mother always said, why pay for milk when you're getting the cow for free.

A Bill to Restrict Use of Celebrity Images

I received the following advisement from ASMP in my e-mail. A prior e-mail had advised contacting the Senate, but didn't even mention the Assembly. Photographers in L.A. should have shown up at the office of sponsoring Senator Kuehl, but it's too late for that. She, like the governor, has her roots in acting (she worked under the name of Sheila James, and played Zelda on the old Dobie Gillis show) and I doubt that the governator's going to refuse to sign this bill. While my read on it is not quite the same as ASMP's, I suspect it will take a lawsuit to find out exactly how far the legislation actually goes to damage the value of older images.
**********************************
The California right-of-publicity bill (Senate Bill 771) has now passed in the Assembly. There are only two things we can do to improve the situation:

1. Call your Senator and ask that the bill be amended by deleting Subsection P, which is the provision that makes the legislation retroactive —- THIS MUST BE DONE BY FRIDAY.
2. Call the Governor and ask him to veto the bill.

It is crucial that you act right away! After Friday, it may be too late.

Please call your state Senator’s office. Here is where you can find his or her contact info:

http://192.234.213.69/smapsearch/framepage.asp

Governor Schwarzenegger’s main office telephone number is 916-445-2841.

Just tell the person who answers the phone that you are a constituent and admantly opposed to Senate Bill 771. Tell your Senator’s staff member that you want the bill amended by deleting the retroactive aspect, Subsection P. Tell the Governor’s staff member that you want him to veto the legislation.

It will only take a couple of minutes of your time, but those few minutes may save you years of problems.

Please feel free to pass this message along to other photographers you know who may not have received this message.

This is probably your last chance to prevent this bill from going through in its current form.

Thank you for your help and cooperation.