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Justice Thomas Still Likes Prince On Thursdays, And What That Means For The Future Of Fair Use

from the orange-you-glad-he-might-like-syracuse-too dept

I’ll start this post with a bit of whimsy before alarming you with the sense of doom portended by the stakes involved with last week’s oral argument at the US Supreme Court in Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith.

In this case the Warhol Foundation is trying to get SCOTUS to overturn a terrible decision at the Second Circuit that found Warhol’s Prince prints to not be a fair use of a photograph earlier taken by Lynn Goldsmith. This case is not just a big deal for the Warhol Foundation, which manages Warhol’s art portfolio, but for anyone else who may ever wish to make a fair use of any copyrighted work that ever came before. Which not only includes other modern artists – the Warhols of tomorrow, his foundation’s lawyer reminded us – or others who would seek to remix obvious visual references in their new works, but basically anyone else ever tempted to create new expressive works (including filmmakers, authors, writers, musicians, and even photographers themselves). Because if the Second Circuit’s new interpretation of how the fair use provision of the copyright statute is allowed to stand, it will fundamentally shrink the vocabulary available to new creators who have new ideas to express.

But I digress into substance. Back to the whimsy: at the hearing, Justice Thomas, who, before the pandemic, almost never asked questions of the lawyers arguing before the Supreme Court, posed an interesting hypo to the lawyer for the Warhol Foundation. He started it out by musing, “Let’s say I was a big Prince fan, which I was in the 1980s…” As his voice trailed off to form his next sentence, Justice Kagan piped up to ask, “But no longer?” At which point the entire court, and the bench, including Justice Thomas, succumbed to waves of laughter, and, for a brief moment, we could all forget how much law and liberty rests, already quite bruised, in the hands of these extremely flawed humans assembled before us.

“Only on Thursdays,” Thomas quipped back, before returning to his hypo. The hypo continued by asking what if he were also a Syracuse fan and took an orange version of the Warhol Prince print, added the line to it, “Go Orange” and waved it around at basketball games. Could he be sued by Warhol for that?

Which brings us back to the heart of this case. The question before the Supreme Court was what the rule should be for when fair use should be found. There was no debate of course about whether there should be fair use; it’s a baked-in part of the copyright statute sitting at 17 U.S.C. Section 107. And, as the Supreme Court has previously noted, it needs to be in there to prevent a conflict between copyright law and the First Amendment, to help ensure the former does not do violence to subsequent expression. What the Warhol side argued, correctly, is that the Second Circuit’s decision rejecting Warhol’s fair use defense, obviated it as a usable defense for subsequent expression, and so it petitioned the Supreme Court to correct that error.

The issue arose because, although the statute articulates four factors courts should consider to determine whether a use of a previous work is fair, they aren’t necessarily exhaustive, nor, as this case illustrates, are they entirely clear. This case is about clarifying how these factors should be applied, or, more specifically, this case is about whether, in finding the Warhol Prince prints infringing, the Second Circuit applied the first factor wrong, and if the fourth factor had something to do with it. (And, if so, how the court should have done better.) The fourth factor, working backwards, is the effect on the market for the original work, and Justice Thomas’s hypo touched on it. The Warhol Foundation initially said that his posters should clearly be fair use, noting that Thomas making them would not implicate the fourth factor. Oh no, said Thomas. “I intend to market these things to all my Syracuse buddies!”

Which returns the analysis to the first factor, which looks at the purpose and character of the new work, with the implicit question of whether it’s the same as the original’s. And that’s basically where nearly two hours of oral argument lingered, as everyone argued about what the word “purpose” in the statute even meant.

The Warhol argument largely boiled down to courts needing to ask whether the new work conveyed new meaning not conveyed by the original. But it also made the wider point that when the subsequent work does convey new meaning that the original did not (and in this case there isn’t really a dispute that the Warhol work captured something else to describe who Prince was as a person that the original Goldsmith work had not) then, fundamentally, it could not be seen to share the same purpose as the original, because that expressive purpose was different. As the argument went on the justices wrestled with who should get to decide if there was new meaning, and what constituted adequate proof of it. But the Warhol Foundation complained that the Second Circuit basically had not bothered to consider whether there was any new meaning at all, and at minimum SCOTUS should direct the Second Circuit to redo its analysis with that question in mind.

Goldsmith, on the other hand, and supported by the government, argued that the “purpose” of the Warhol picture was the same as her picture, which was simply to be a picture of Prince that could illustrate an article in a magazine. And if a magazine could pick the Warhol picture over the original Goldsmith one, then that would indicate fourth factor harm, since the market for the original would now be reduced as it competed commercially with the subsequent work.

But if we are going to be able to have new works that express new ideas that the original works did not, then the Warhol argument needs to prevail. And, even given what Goldsmith argued, it should prevail. Because to the extent that both are pictures competing to be used in a magazine, they aren’t competing with each other as literal portrayals of Prince. In fact, to the extent they are, then it is questionable how strong the copyright claim could even be in the original picture, because the essential fact of what Prince looks like is not subject to copyright; rather, it is the originality that Goldsmith included in the capture of his likeness that said something about him that earned the copyright. And it is Warhol’s changing of those creative elements to say something else about him that avoided the copyright to be a fair use.

Because these two pictures say something different about Prince, the one the magazine editor will choose will be the one that says something about Prince that best complements what the article says about him. As such, the first factor should favor finding the second picture fair use, because its purpose is to say something different about Prince than the original did, and so should the fourth factor also favor a finding of fair use, because the latter will not impinge on the market for the pictures saying what the original did. It will instead create its own market for its own original expression conveyed.

Nevertheless, Goldsmith, and the government, instead argued that fair use should be more limited, and that subsequent uses should only be fair if it was truly necessary to have used the original to make their new expression. But necessity is not a requirement found in the statute. Nor could it be there if fair use is going to serve its purpose of advancing future expression.

To support their argument Goldsmith (and the government) took issue with the fact that one of the exclusive rights of a copyright holder, at 17 U.S.C. Section 106(b), is the ability to license derivative works. Copyright holders complain that too much fair use makes that derivative right too limited to be valuable, but what happened at the Second Circuit with this case, and in the Ninth Circuit with the ComicMix case, is that the right to control derivative works essentially snuffed out the ability to ever make fair uses, because it wouldn’t matter how much you transformed the original since the transformation was essentially always going to be a derivative. However, as the Warhol Foundation argued in response to questions from the justices, the text of the statute prioritizes the ability to make transformative fair uses over the derivative right in order to make sure that the former ability can functionally exist. (See the preamble of Section 106: ” Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following…”)

Fair use is already plenty messy; as Lawrence Lessig observed, fair use is the right to hire a lawyer, as opposed to the obvious and durable shield for subsequent expression even the Supreme Court itself has previously recognized it should be. Both Goldsmith and the government also drove home the point that fair use is merely an “affirmative defense” that someone charged with infringement would still have to put before the court to convince it that their use was instead a non-infringing fair use. But that reality cuts against their read of the copyright statute. For fair use to promote subsequent expression it needs to afford creators fairly expansive and reliable protection in order to sufficiently deter infringement suits against it. If it were too narrow or too conditional, such that anyone creating new expression would have to plausibly fear being forced to spend the money to defend their new expression, then they simply won’t create it because it won’t be worth the legal risk. And that’s what’s at stake here: whether fair use can be applied broadly and reliably to encourage new ideas, or whether it is a more narrow needle that fewer subsequent creators will be able to be confident they can thread, which will inevitably chill their expression.

But any law that deters new expression would offend the First Amendment, with its admonition to Congress not to impinge on free expression. And copyright law is no exception, especially because if copyright law is found to operate in a way that chills expression it would also run counter to the Progress Clause of Constitution, which enables Congress to pass copyright legislation only for the specific purpose of promoting more expression. As the Copia Institute argued in its amicus brief, if the upshot to copyright law, and the practical interpretation of it that the courts instruct, is that new expression is suppressed by copyright, then copyright law would have a constitutional problem on both fronts. So that simply can’t be how courts, including the Supreme Court, should find the statute to work.

And now we wait to see if the justices agree.

Filed Under: andy warhol, art, clarence thomas, copyright, fair use, lynn goldsmith, photography, prince, transformative work
Companies: andy warhol foundation

Federal Court Can't See Any First Amendment Implications In Local Ordinance Blocking The Photography Of Children

from the I-guess-a-law-is-good-if-it-makes-something-illegal dept

You can’t always pick your fighter for Constitutional challenges. Sometimes you’re handed an unsympathetic challenger, which makes defending everyone’s rights a bit more difficult because a lot of people wouldn’t mind too much if this particular person’s rights are limited. But that’s not how rights work.

A pretty lousy decision has been handed down by a Minnesota federal court. A challenge of two laws — one city, one state — has been met with a judicial shrug that says sometimes rights just aren’t rights when there are children involved. (h/t Eric Goldman)

The plaintiff is Sally Ness, an “activist” who appears to be overly concerned with a local mosque and its attached school. Ness is discussed in this early reporting on her lawsuit, which shows her activism is pretty limited in scope. Her nemesis appears to be the Dar Al-Farooq Center and its school, Success Academy. Ness feels there’s too much traffic and too much use of a local public park by the Center and the school.

Here’s how she’s fighting back against apparently city-approved use of Smith Park:

Ness has taken it upon herself to document activity at site. That includes maintaining a public blog and Facebook page all about the “DAF/Success Academy controversy,” complete with photos and video of street traffic, kids being dropped off at school, and people otherwise going about their business.

Her legal representation in this lawsuit isn’t that sympathetic either.

The American Freedom Law Center, which claims that “the battle for America’s soul is being waged in the courtrooms across America” against “secular progressives and Sharia-advocating Muslim Brotherhood interests,” is co-counseling the case. The Southern Poverty Law Center calls that organization’s co-founder David Yerushalmi an “anti-Muslim activist” and “a leading proponent of the idea that the United States is threatened by the imposition of Muslim religious law, known as Shariah.”

Her lawyer says this has nothing to do with the school’s religious affiliation. Her co-counsel, David Yerushalmi, disagrees.

In a statement, he says Ness’ predicament is just “another example of encroachment on our liberties when Islam is involved.”

Ness became involved when the mosque opened its school and obtained a Conditional Use Permit for Smith Park that allowed students to use it during school days. Ness believes the permit is being violated on a daily basis by students’ “excessive” use of park facilities that makes it “impossible” for nearby residents to use it at the same time.

To document these supposed violations, Ness has approached children in the park and parked across the street to take photographs/record DAF students using the park. She had two run-ins with local law enforcement before filing her lawsuit. After the most recent law enforcement encounter, Bloomington police attempted to charge Ness with felony harassment, but the Hennepin County Attorney’s office declined to bring charges against her. Bloomington prosecutors also declined to prosecute Ness.

Ness sued, claiming the laws cited infringed on her Constitutional rights and that the ongoing threat of prosecution has resulted in her curtailing her documentation of park use by the school.

The problem is the laws. Ness’ behavior is problematic but it shouldn’t be criminally problematic. First, the state’s harassment law — as quoted in the court’s opinion [PDF] — does not require prosecutors to prove intent.

Subdivision 1. Definition. As used in this section, “harass” means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim.

Subd. 1a. No proof of specific intent required. In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result.

Then there’s an additional ordinance — one put in place by the city of Bloomington after Ness’ two run-ins with the local PD — that criminalizes Ness’ documentation of park activities.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child’s parent or guardian.

This is amazingly broad. It criminalizes journalism and the recording of criminal acts by minors. This revision appears to have been crafted solely to target Ness and her activism. Ness was also a frequent commenter at Bloomington city council meetings until filing this lawsuit.

The court says Ness has no standing to challenge the laws. According to the judge, she does not face a credible threat of prosecution. The decision cites the two refusals to prosecute, as well as prosecutors’ statements on the issue.

_Ness claims she intends to monitor an issue—the non-compliant use of DAF’s facilities and the use of Smith Park—by filming and photographing the activity in the physical vicinity of DAF, which may include filming and photographing people. Compl. ¶¶ 36, 47, 70, 71; Ness Decl. ¶¶ 6, 18, 28. Ness does not claim a desire to surveil individuals or track their location by filming or photographing them once they leave DAF’s neighborhood. As Ness herself has stated, “I try to make this as not about people . . . . It’s not specifically about an individual. It’s about the City collectively not doing their job.” Jones Decl. Ex. 1 at 18:49–18:53. Thus, as the County Attorney and the City both acknowledge, Ness’ intended conduct is not proscribed by the Harassment Statute because she is not tracking or monitoring a particular individua_l.

But then the court goes on to quote police officers’ implicit threats of arrest as evidence Ness won’t be subjected to further law enforcement scrutiny or prosecution.

Ness relies on the police report from the incident, which states that Officer Meyer “asked [Ness] to stop filming,” and that “Ness was advised that she could be charged with harassment if the parents and principal felt intimidated by her actions.” Compl. ¶ 54. However, the bodycam footage of the encounter establishes that Sgt. Roepke expressly told Ness “this is a public place, . . . you have a right to . . . take pictures in a public place or video or, or anything like that. There’s not an issue with that. . . . [B]ut if you’re doing it in a means to intimidate them or to harass them, then it becomes a problem.” Jones Decl. Ex. 3 at 1:50. Sgt. Roepke also told Ness “if you want to take some pictures, come and take some pictures and then move on.” Id. at 7:50. When Ness described the August 2019 encounter to Detective Bloomer months later during her interview, Ness stated that Sgt. Roepke “clarified” Ness’ conduct was not harassing behavior, and told her to “be careful and read the statute.” Jones Decl. Ex. 5 at 36:22–36:43. The police report of the August 2019 incident, particularly when viewed together with Sgt. Roepke’s statements and Ness’ own recollection of the incident, does not rise to the level of a credible threat of prosecution. Ness’ decision to chill her speech, after being told by Sgt. Roepke that she had a right to take videos and that her conduct was not harassing behavior, was not based on an objectively reasonable fear of prosecution.

Unfortunately, this supposedly “unreasonable” fear of prosecution stems directly from the law, making it a lot more reasonable than the court says. Prosecutors do not have to prove intent. And, as the officer stated clearly, all it would take is for subjects of Ness’ recordings to feel harassed. It doesn’t matter whether or not Ness intended to harass anyone. That’s pretty open-ended and that makes her fear of prosecution a lot more reasonable.

The court agrees Ness has standing to sue the city of Bloomington over its ban on filming children.

The City Defendants argue that “[e]ven if Ness had standing to sue, her facial challenge to the ordinance under the first Amendment would fail.” City Defs.’ Mem. Supp. Mot. Dism. [Docket No. 68] at 10 (emphasis added). However, the City Defendants’ briefing does not include an argument for why Ness might lack standing to challenge the City Ordinance. Ness’ intended conduct will include photographing and filming children in a City park without parental consent. This conduct is proscribed by the City Ordinance, and the City has not disavowed an intent to charge Ness with violating the City Ordinance if she were to engage in this conduct. Under these circumstances, Ness’ decision to chill her speech due to the existence of the City Ordinance is objectively reasonable. Ness has standing to challenge the City Ordinance.

But it says she has nothing to sue about because the ordinance does not affect her First Amendment rights.

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker’s message or viewpoint, it is content neutral.

Neutral, except as to the content of the recordings, which is what’s targeted by the city’s ban. But the court says the definition of “content” hinges on what the speech conveys, rather than what it contains.

Ness also points out the ordinance is unconstitutional because it fails to do what it purports to do: protect children from being recorded. The court disagrees, saying the ordinance is adequate enough to achieve its aims.

Ness argues that the City Ordinance is underinclusive because if a person takes a step outside a City park and films children from the street, the City Ordinance will not be violated. Ness contends this underinclusiveness undermines the City’s claimed interest in protecting children’s privacy and preventing them from being exploited or intimidated. However, requiring would-be recorders to collect images from a distance, rather from inside a City park, makes it less likely that a child in the park will feel frightened or that the child’s identity will be ascertainable. Thus, the City’s important government interest in protecting children is not undermined by allowing a person to record children from just outside a City park’s boundaries.

Finally, the judge says the ends justify the means. The judge appears to believe laws are “narrowly tailored” if they accomplish what they set out to do.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children’s privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Sure, and the city’s attempts to achieve other interests would undoubtedly be more effective if the Constitution didn’t exist. But it does. And the court is supposed to be a check against government overreach, not an enabler of government efficiency.

The lawsuit is dismissed. The court says Ness can film kids from outside of the park’s boundaries without fear of prosecution. Of course, this is what Ness was doing when she was approached by officers who told her to “take her photos” and “move on.” Even if Ness complies with the terms of the ordinance the city appears to have passed just to stop her from doing what she was doing, she still faces the possibility of being subjected to further police action. And even if prosecutors refuse to press charges, there’s still the hassle of the arrest, and the loss of time and freedom during the detainment. These harms aren’t imaginary. The law written to make it more difficult for one Bloomington resident to engage in documentation of perceived permit violations stays on the books.

Most people will probably be fine with this outcome. After all, it mainly affects someone whose interest in park usage seems to be primarily motivated by bigotry. This is all but confirmed by her choice (or acceptance) of the American Freedom Law Center’s legal representation. But bad people can still raise legitimate Constitutional complaints. This isn’t a victory for Bloomington. It’s a loss for its residents who are subject to a badly written law. Even if they have no desire to violate the ordinance, the law can still be wielded against citizens engaged in legitimate activities (like news gathering), thanks to this court’s support.

Filed Under: 1st amendment, activist, children, free speech, photography, privacy, sally ness

from the why-settle-for-anything-less-than-impossible dept

A new “report” has been released by Copytrack, supposedly detailing the insane amount of “stealing” that goes on every day. “Report” is in quotes for reason. First, the “report” [PDF] opens up with a literally unbelievable statistic conjecture.

[I]t is estimated that more than 2.5 billion images are stolen daily. These license violations have the potential to result in up to €532.5 billion in damages daily.

Not even in the most fevered dream of the most overwrought copyright maximalist could this number be considered plausible. As attorney/law professor Jeff Pearlman points out, this hilarious extrapolation from facts not in evidence conjectures that copyright infringement of images alone results in a number that swallows the entirety of the world’s economy.

Let's do some math! GWP (combined global GDPs) is ~$87 trillion. That's ~$240 billion/day. Copytrack says $600 billion/day in "stolen" images.

So: they say the value of "stolen" images is more than twice what the entire world produces in goods and services.

Color me skeptical. https://t.co/nq6tvYjCLl

— Jef Pearlman (@JefAtLaw) April 2, 2019

If you can’t read/see the tweet, it says:

Let’s do some math! GWP (combined global GDPs) is ~$87 trillion. That’s ~$240 billion/day. Copytrack says $600 billion/day in “stolen” images.

So: they say the value of “stolen” images is more than twice what the entire world produces in goods and services.

Color me skeptical.

Yes. Skepticism — massive amounts of it — is called for. Copytrack’s assertion of GWP-destroying infringement starts with another unbelievable number.

Two studies from IMGembed and Copytrack show that of the 3 billion images shared on the internet daily, around 85 percent are used without a valid license.

Let’s talk about sharing. Images are shared frequently, often without licenses. Does this mean each share can be equated with lost income? Of course not. People often use images on social media as placeholders for reactions or as standalone comments. There’s no replacement of the market for these images, unless someone — possibly Copytrack — assumes such innocuous, non-commercial use of images is a market that hasn’t been captured.

Supporters of Article 13 seem to believe this is the case. So does Copytrack. While the legislators behind the internet-crippling law in Europe may be beholden to powerful lobbyists, Copytrack’s reliance on ridiculous extrapolations to compose this report is pure self-interest. Copytrack follows its laughable claim about the “cost” of infringement with a sales pitch. And not “follows” as in “a few pages later,” but “follows” as in “it’s the very next damn sentence.”

Here’s the whole paragraph:

According to the figure above, it is estimated that more than 2.5 billion images are stolen daily. These license violations have the potential to result in up to €532.5 billion in damages daily. Many image owners feel that the extent to which image rights are violated signals a lack of respect for photographers’ work. Looking one step further, violations result in the loss of important revenues for rights holders on a daily basis. In 2018, Copytrack was able to obtain an average of €320 for each copyright infringement case submitted by a Copytrack user.

The pitch goes on from there, assuring users that a) billions of dollars are being “lost” every day and b) Copytrack can help them claw back a few of the billions of “lost” Euros.

If you have anything less than complete skepticism by this point, you’re probably a Copytrack employee.

Somewhat ironically, Copytrack claims the country performing the most infringement isn’t any of the countries listed on the USTR’s annual country-shaming Special 301 reports. According to this report, the USTR’s home country is worst infringer.

Our leader in regards to copyright infringement was not Asia, as many may have assumed, but rather North America with 33.90 percent of image copyright violations coming from this part of the world.

The US is ahead of every other country by a healthy margin, something Copytrack believes is due to the large percentage of the population with internet access. It then breaks this down by city, coming to the astonishing conclusion that the most infringing US city is… Scottsdale, Arizona. Here’s how Copytrack attempts to explain this finding:

Scottsdale was responsible for 5 percent of image infringements and did so with a population of only about 250.000 inhabitants! Finding reasons for this placement is not easy, however, in 1993 Scottsdale was rated the “most liveable city in the USA and made a name for itself in tabloid media as a celebrity vacation spot. In Scottsdale, photos of popular locations are some of the most commonly used pictures without a license. It is therefore quite possible that the sudden fame of the city was picked up locally and was spread across the internet – without sufficient diligence for image rights research.

Ok then. Maybe next time, try to perform some of that “sufficient diligence” before hitting the “publish” button. Here’s a more likely explanation why so much infringement appears to be coming from Arizona: domain registrar GoDaddy is headquartered in Scottsdale, Arizona and private registrations default to GoDaddy’s home address. This logic failure is especially ridiculous considering Copytrack suggested it was private domain registrations driving the surprisingly high amount of alleged infringement in Panama City, Panama — which leads the world in infringement percentage according to this report.

Given Copytrack’s inability to rein in its statistical leaps of faith or its bizarre theories about mass infringement in the Arizona real estate industry, perhaps it shouldn’t have applied its… um… prowess to minutia no one cares about. But it did and so there’s a whole page dedicated to breaking down the resolutions most commonly “stolen.” This, unsurprisingly, turns out to be 1920×1080, followed by sizes commonly used by online publications to ensure viewability across a wide variety of platforms and devices (600×400). Basically, the most popular sizes for infringement are also the most popular sizes for non-infringing use.

I mean, is there really any usable knowledge to be gleaned from this chart?

Obviously, Copytrack thinks so. Maybe this chart is included to let rights holders know they can limit infringement by uploading creations in resolutions no one would even take for free… like 600×150 or 350×1200 or whatever. Sometimes you just have to realize that not all data is relevant, useful, or even marginally interesting. Copytrack appears to feel it needs to use all the data it collected, even if the data is completely devoid of information.

I guess if the ultimate point is to pitch your services to new customers, Copytrack’s report can be considered a success… but only if it results in new customers. By any other standard, it’s a failure. And an embarrassing one at that.

Filed Under: copyright, photography, piracy
Companies: copytrack

from the work-for-higher dept

We’ve seen plenty of ridiculous demands from performing artists over the years as to what photographers can and cannot do while attending their performances. This sort of thing typically amounts to a desire for some kind of control over which images get released and which don’t. That kind of attempt at control is silly, of course, and runs counter to the journalistic principles that many of these photographers employ.

But if you want to see the really batshit crazy extreme of all this, we need apparently only look to the rules that Ariana Grande’s tour puts on photographers.

The “Standard Terms and Conditions for Photographers/Live Appearances” for the Sweetener World Tour‎ require that “all rights (including all copyrights) in and to the Photographs shall be owned by GrandAriTour, Inc. (‘Company’) as a “work-made-for-hire.’” The agreement provides for “the limited right to capture solely still photographs of Artist solely during the first three (3) songs performed by Artist at the Performance” and that “any such photography shall only occur from a designated spot at the front of house (not in the ‘pit’).” In addition, the photographers covering the concert and the news organizations for which they work, would only be allowed to use their own photographs if the specific images were “expressly approved in writing by Artist,” and even then, only “in a single instance, solely as part of a news item relating to the Performance in the news publication of which Photographer is an employee/agent,” which violates established journalistic ethics.

To say that all of this is onerous for photographers would be a laughable understatement. This isn’t how photographers work, particularly those who are working in any kind of journalistic enterprise. The very nature of journalism requires the circumvention of this type of editorial control and nothing in copyright law remotely allows an artist making a public performance to put these kinds of restrictions on photographers.

Now, I already know what you’re thinking. You’re thinking that this agreement is only for photographers that are working for the tour, in which case they would be agreeing to these restrictions knowingly, so what’s the big deal? Well, the National Press Photographers Association, which has issued an open letter to the Grande tour, and which is advising its members not to go anywhere near this agreement, explains that Grande’s tour is actually trying to turn the clicking of a shutterbox into a signature to the agreement.

NPPA Deputy General Counsel Alicia Calzada also noted that in addition to the ethical and practical problems with the agreement, the bold underlined writing at the end of the agreement stating that “Any Photography of Artist by Photographer Shall be Deemed Acceptance by Photographer of the Terms Hereof, and Company and Artist Shall Proceed in Reliance on Such Acceptance,” is inappropriate and not legally binding. “You can’t transfer copyright that way,” she said while also taking issue with the fact that “photographers are not legal agents of a news organization and generally do not have the authority to sign away the copyrights of their employers.”

That probably renders the entire agreement unenforceable and, therefore, pretty fucking useless. Which only raises more questions, such as: what the hell is the point of creating such an burdensome agreement to begin with? And: what crack legal staff actually signed off on this thing?

It’s probably worth pointing out that having all of this come from an artist like Grande, who herself enjoys all kinds of copyright protections and whose business is enabled entirely by the First Amendment, is additionally problematic. Apparently, copyright is just fine for Grande, as is artistic expression, but for everyone else it’s fairly non-existent.

Filed Under: ariana grande, copyright, nppa, photography

Getty Images Sued Yet Again For Trying To License Public Domain Images

from the this-keeps-happening dept

Back in 2016, we wrote about two separate lawsuits involving claims that Getty Images was selling “licenses” to images it had no rights to sell licenses to. The first one was brought by photographer Carol Highsmith, who sued Getty after Getty had sent a demand letter to her over her own images, which she had donated to the Library of Congress to be put into the public domain. That lawsuit mostly flopped when Getty pointed out (correctly) that Highsmith had no standing, seeing as she had given up the copyright in the photos. The second lawsuit was even more bizarre, involving questions about Getty’s rights to various collections it licensed, and whether it had changed the metadata on photos from photo agency Zuma Press. At the time, we noted that little in that lawsuit seemed to make sense, but it still went on for over two years before Getty prevailed, and basically said the only mistakes were done by Zuma.

Well, now we’ve got another lawsuit against Getty over allegedly licensing public domain images. This one was brought by CixxFive Concepts, and… also seems to be a stretch. How much of a stretch? Well, it starts out by alleging RICO violations, and as Ken “Popehat” White always likes to remind everyone: IT’S NOT RICO, DAMMIT. This lawsuit is also not RICO and it’s not likely to get very far.

This is a lawsuit brought by CixxFive, on behalf of itself and others similarly situated, alleging RICO, Washington Consumer Protection Act, and other claims against Defendants for fraudulently claiming ownership of copyrights in public domain images (which no one owns) and selling fictitious copyright licenses for public domain images (which no one can legally sell), including operating an enterprise of third-party contributors to perpetrate this egregious scheme.

Here’s the thing, though: you can still sell public domain images. You can do whatever you want with them. Of course, you can’t sue over infringement of them, but you can most certainly still sell them. Why do you think book publishers still make a ton of money selling the Bible, the works of Shakespeare, Dickens and others.

In the lawsuit, CixxFive correctly notes that Getty has NASA images in its database, and those are very clearly in the public domain.

Among the images that Getty and/or Getty US licenses are hundreds of thousands to millions of photographs that are in the public domain, including NASA images, White House press images, historical paintings and documents, and photographs that have been donated to the public domain by the authors.

For example, Getty and/or Getty US offers to let the user ?Purchase a license? to a NASA photo of Saturn for 499.00with?standardeditorialrights??orjust499.00 with ?standard editorial rights? ?or just 499.00with?standardeditorialrights??orjust475.00 with an UltraPack,? which is a five (5) pack of assets for $2,250.00.

While this may be sleazy, it is hardly against the law.

These images are in the public domain. No one is required to pay Getty and/or Getty US a penny to copy and use them. And Getty has no right to sell copyright licenses for them, as it has done and is doing.

The first sentence is true, the second, not so much. Well, it can’t sell “copyright licenses,” as that is a misrepresentation over the rights that Getty Images has — but if it wants to try to get people to pay for stuff that is otherwise available for free, that’s Getty’s prerogative.

The part of the lawsuit that I don’t think will work, but is at least somewhat interesting, is the argument that this is somehow an unfair or deceptive practice. That’s moderately more compelling than the RICO claim.

One aspect of the deceptive nature of Getty?s and/or Getty US?s licensing scheme is that Getty and/or Getty US claims copyright on all of the content on its website. For example, the bottom of each page of its website states: ?All contents ? copyright 1999-2019 Getty Images. All rights reserved.?

Also, specific public domain images are overlaid on Getty and/or Getty US?s website with the ? symbol followed by an entity or contributor name, indicating that the image is protected by copyright. The same ? symbol and information is also provided next to the public domain image.

Getty?s and/or Getty US?s website terms agreement also states as follows: ?Unless otherwise indicated, all of the content featured or displayed on the Site, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof (?Getty Images Content?), is owned by Getty Images, its licensors, or its third-party image partners.?4

Getty?s and/or Getty US?s website terms agreement further states as follows: ?All elements of the Site, including the Getty Images Content, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property.?5

Getty?s and/or Getty US?s Content License Agreement also states, under the heading ?Intellectual Property Rights,? as follows: ?Who owns the content? All of the licensed content is owned by either Getty Images or its content suppliers.?6 (emphasis in original)

That part is at least a bit more compelling, but I’m not sure why CixxFive has standing to sue over that. It seems more like something the FTC or state Attorneys General could go after instead. CixxFive argues that it has standing to sue because it licensed some of these public domain images. But.. that seems to be on CixxFive. If it didn’t do the research to discover that those pictures were available totally free elsewhere, it’s not clear how that’s Getty’s fault.

The lawsuit also points to Getty’s infamous copyright trolling practices via its subsidiary License Compliance Services (LCS), but never actually shows that LCS has threatened anyone over the use of public domain material… other than raising the issue of Carol Highsmith, whose lawsuit we mentioned above, and which got thrown out of court.

I’m certainly sensitive to the slimy practices of Getty Images, and claiming that public domain images are available for license (at very high fees) is very slimy. But it’s not at all clear that it’s against the law. And it’s certainly not RICO (dammit).

Filed Under: copyright, licensing, photography, public domain
Companies: getty images

Another Lawmaker Is Trying To Create A Photography-Free Zone For Police Officers

from the the-21-foot-rule-of-police-misconduct dept

A former cop is trying to legislate some First Amendment-violating protection for his blue-clad brothers. Everyone’s carrying a camera these days and Arizona Senator John Kavanaugh wants them to be as far away as possible from police officers performing their public duties. Ken White (aka Popehat) summarizes the proposed legislation for FaultLines.

The proposed legislation makes it illegal to record cops in action.

IF THE PERSON MAKING THE VIDEO RECORDING DOES NOT HAVE THE PERMISSION OF A LAW ENFORCEMENT OFFICER AND IS WITHIN TWENTY FEET OF WHERE THE LAW ENFORCEMENT ACTIVITY IS OCCURRING.

If it’s on private property where you have a right to be — say, your house — you can record the cop from the next room, unless of course the cop says you can’t.

IF THE LAW ENFORCEMENT ACTIVITY IS OCCURRING IN AN ENCLOSED STRUCTURE THAT IS ON PRIVATE PROPERTY, A PERSON WHO IS AUTHORIZED TO BE ON THE PRIVATE PROPERTY MAY MAKE A VIDEO RECORDING OF THE ACTIVITY FROM AN ADJACENT ROOM OR AREA THAT IS LESS THAN TWENTY FEET AWAY FROM WHERE THE ACTIVITY IS OCCURRING, UNLESS A LAW ENFORCEMENT OFFICER DETERMINES THAT THE PERSON IS INTERFERING IN THE LAW ENFORCEMENT ACTIVITY OR THAT IT IS NOT SAFE TO BE IN THE AREA AND ORDERS THE PERSON TO STOP RECORDING OR TO LEAVE THE AREA.

Taking video from 19 feet away is a petty offense, unless the cop tells you to piss off, at which point it becomes a misdemeanor if you don’t.

Having learned nothing from Texas legislator Jason Villalba’s similar attempt to create a footage-free buffer zone for police work, Kavanaugh is headed down the same path towards ridicule and disappointment. The only difference is that Arizona citizens would be “allowed” five feet closer (20′, rather than 25′) to their public servants.

Kavanaugh, as White points out, is a former police officer. This explains his desire to take the “protection” out of “protected speech” and hand it over to law enforcement. Officers will then be free to guesstimate the appropriate distance for filming and enforce the new law accordingly.

Kavanaugh’s latest effort follows his apoplectic defense of a bill that would shield officers involved in shootings from any sort of public disclosure for at least 60 days. Last year, he claimed the US was full of “lunatics and zealots” seeking to “assassinate” police officers, thus necessitating the conversion of transparency and accountability into an opaque shield for excessive force and misconduct.

The legislator’s rationale for his boneheaded, unconstitutional legislation traces all the way back to his days as a cop, when an arrest didn’t go exactly as planned.

Senator Kavanaugh explained to U.S. News and World Report that this is all Wilson Pickett’s fault.

“In the early 1970s, Kavanagh says, he arrested a bandmate of the popular “Mustang Sally” singer at John F. Kennedy International Airport. He had the man against a wall after finding syringes in a clam-shell jewelry case when Pickett approached and politely asked, “Is this gonna take long?” he recalls.

The next day, the ex-Port Authority cop says, he was told the arrestee tossed a package of heroin behind a television as he looked away.”

As I recall Yosemite Sam used to fall for that “hey look over there” routine a fair amount as well.

Yet Senator Kavanagh didn’t offer a bill prohibiting musicians, or any other class of people, from approaching an officer in the course of a detention or arrest. He aimed at folks recording cops.

The omnipresence of cameras is obviously disconcerting for officers who prefer to do their work either unobserved or witnessed solely by unreliable eyeballs. Existing laws can be used to arrest those who truly interfere with police business, but someone roaming the periphery with an iPhone is only a distraction if the officer allows it to be a distraction. Giving them the power to arrest photographers only ensures cops will be more distracted than ever. And while they’re approaching the person standing 15 feet away recording the arrest, the suspect will have even more opportunities to discard evidence than the guy in the Wilson Pickett case ever did. Of course, these “distracted” arrests — accompanied by descriptions of the evidence that got away — will be offered up as justification for Kavanaugh’s First Amendment-trampling.

In both of these cases where law enforcement sympathy has trumped logic during the bill-crafting process, no one seems to have taken into account the other photography equipment everyone seems to have: CCTV. In recent high-profile shootings (Laquan McDonald, Fridoon Nehad), this technology has been the silent, unseen witness that has produced evidence that contradicts police reports. How does the 20-foot rule work in these situations? Arguably, a person does control the camera, even if only to collect footage passively. Would Kavanaugh have these cameras disabled or their footage destroyed if they “intrude” on the crime scene?

No matter how it’s spun, this is nothing more than a former cop trying to delay the inevitable.

Why do legislators like Kavanagh keep trying this nonsense? They do so because their constituency is cops, and people who think that cops should be obeyed without question. And cops are nervous. Disturbing videotapes of police misconduct are no longer a rare exception, as in the Rodney King era. With a smartphone-obsessed populace, they’re an almost daily occurrence.

At this point, it can’t be stopped. It can’t even be contained. A roaming 20-foot “halo” around cops won’t keep their misdeeds from being recorded. And it’s highly unlikely a judge would be sympathetic to the destruction of recorded footage as the result of misdemeanor arrest. As White points out, it’s not as though the punishment of bad cops has risen in correlation to the amount of available footage. It’s still the exception for an officer to be severely punished, rather than the rule. But that too will change and that’s what cops — and Kavanaugh — are afraid of.

Filed Under: accountability, arizona, first amendment, john kavanaugh, photography, police, video tapes

from the prioritize-shutting-down-recordings-over-successful-undercover-investigations dept

Photography Is Not A Crime (PINAC) has obtained the Lakeland (FL) Police Department’s internal guidance on citizen recordings. What should be a simple, succinct document stating that photography and recordings are presumed to be protected by the First Amendment, the guidance works extra hard to imagine scenarios where it might be possible to shut down recordings or seize devices.

The undated document makes it impossible to determine whether this was written before or after LPD attorney Roger Mallory lost some of his legal guidance privileges as a result of his highly-questionable handling of public records requests.

This is the very same attorney who was previously demoted from his position at the Lakeland police department after losing a public records lawsuit which cost his city’s taxpayers $160,000, after which plaintiff Joel Chandler called Mallory’s legal strategy, “doubling down on stupid.”

Whatever the case, it’s Mallory’s name on the document. After a brief nod towards citizens’ rights, Mallory starts suggesting ways the Lakeland PD can violate them — starting with the horribly stupid suggestion that undercover cops should blow their cover to confront photographers.

A couple of examples of those circumstances in which video-recording/photographing of you might constitute the crime of Resisting might be:

1. You are conducting surveillance from a location under circumstances in which we have a clear and reasonable intention and investigative need to remain secret and the videorecording/photographing can be reasonably expected to include your chosen location such that a viewer of that video/photograph could identify that location, and

2. You are acting in an undercover capacity, you are actively conducting law enforcement business (not, e.g., on lunch break, etc.), i.e., you are actually performing some legal duty (e.g., conducting an investigation), and the video-recording/photographing would somehow reveal your identity as a police officer, thereby endangering you and/or denying you the opportunity to continue to perform your legal duty.

So, rather than ignore the recording and maintain cover, officers should reveal themselves, thus clearing up any questions as to whether or not they were participating in an undercover investigation. Presumably, the PD’s attorney feels the crime of “resisting” would justify seizure of recording devices and the deletion of captured images/video. The guidance doesn’t detail how this would play out in court, but it likely doesn’t matter. If the footage is deleted, the undercover operation sabotaged by officers making “resisting arrest” arrests would still be intact and taxpayers will foot the bill for any lawsuits that follow.

The guidance also attempts to twist the state’s wiretapping statute to cover audio recordings of officers performing their public duties. Mallory says citizens must either inform officers (verbally or in writing) that they are recording or prominently display the recording device. If neither of these two things happen and the officer has a “reasonable” basis to believe they aren’t being recorded, they may be able to charge a citizen with a felony.

If, however, you had an objectively reasonable basis upon which, it was your expectation, your oral communications/voice were/was not being recorded, and the person recording intended to record, the subject commits the felony crime of wiretapping (see Section 934.04(1) and (4), F.S.).

Mallory does caution officers that courts aren’t very tolerant of officers who abuse wiretapping statutes to shut down recordings or seize devices.

[T]he determination by a court of the presence or absence of objective reasonableness will be made, in part, on the basis of the modern reality of the abundance of video and audio recording devices in our environment. We would be wise to remember that the courts will not likely accept your expectation of non-recording if that expectation is tainted by hypersensitivity or something the courts might construe to be an unusually high degree of paranoia.

It also warns officers that abusing “resisting arrest” charges or otherwise claiming recordings were somehow “obstructing” them in their duties will similarly be viewed dimly by presiding judges.

The case law does not support an officer’s position that a citizen who appeared to be video and/or audio-recording the officer/scene caused the officer to be distracted, and that mere distraction rose to the level of actual obstruction or opposition of the officer in their performance or attempted performance of their legal duty (i.e., the commission of the crime of Resisting). […] Absent additional facts beyond mere distraction, a court will conclude the crime of Resisting did not occur and the officer was being unduly hypersensitive, thin-skinned, and perhaps displayed conduct that was less than that of a law enforcement professional.

Mallory arrives at this sensible conclusion…

Going “hands on” and/or seizing a video-recording device requires a lawful basis; examples of which are provided above. An officer’s subjective expectation that they will not be videorecorded while conducting their enforcement business is not sufficient to justify this officer conduct.

…before wrapping the guidance up by suggesting the state’s wiretap laws might provide useful loopholes. After all, most devices that record video also record audio.

Audio-recording, however, is somewhat different. If the person whose oral communications are being recorded has a reasonable expectation their oral communications are not subject to interception/recording, then the intentional audio-recording of them by a citizen constitutes the felony crime of wiretapping. To the very short list of legal bases for going “hands on” and seizing video-recording devices offered above, if the recording is audio-recording, we can add the legal basis to arrest and seize the recording device as evidence of the crime of wiretapping.

Finally, in the ballsiest bit of sour-graping ever included in police legal guidance, Mallory bitterly points out that citizens have access to a “good faith exception” of their own:

Be aware, however, that in charging the crime of wiretapping, prosecution and conviction is not guaranteed as the law of wiretapping includes a well-hidden, but complete criminal defense of “good faith reliance” on a “good faith determination” that the criminal law of wiretapping did not apply . (See Section 934.1 0(2)(c), F.S. , misleadingly entitled only “Civil Remedies.”)

Not so great when citizens have access to the same defense that cops so often use to excuse their Constitutional violations, is it? Hopefully, any bogus wiretapping charges leveled against citizen recorders will be dismissed by courts cognizant of the fact that they extend this courtesy to law enforcement far too often.

Filed Under: florida, lakeland, photography, police, public, videotaping police

DailyDirt: Say Cheese… All The Time

from the urls-we-dig-up dept

Cameras are everywhere now. That’s not really a surprise to anyone. Camera technology has vastly improved and gotten a lot cheaper, and sharing and storing photos is incredibly easy and cheap, too. So what’s left for cameras to do? Plenty. There are some innovative new kinds of cameras, like the Lytro which lets you re-focus shots after you’ve taken them (instead of before). We’ve also pointed out lensless cameras, single pixel cameras, plenoptic cameras, panoramic cameras… and there seems to be no shortage of cameras and camera accessories on the way.

After you’ve finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: camera gear, cameras, digipod, drones, dslr, kaleidocamera, l16, photography, sensors
Companies: gopro, light, lytro

Boston Police Commissioner Wants Cameras Further Away From Cops, Criminal Charges For Not Assisting Officers

from the Accountability-Free-Zones dept

Earlier this year, Texas legislator Jason Villalba attempted to shortchange the First Amendment in the name of “officer safety” by making it illegal to film police officers from within a 25-foot, constantly-moving radius. His proposed law was greeted with criticism (and death threats, according to Villalba) and was consequently discarded because it was a terrible, arbitrary law that had only the briefest of flirtations with reality and logic.

For one thing, the law would have prompted officers to split their attention between the job at hand (whatever crime they were responding to/investigating) and Villalba’s directive. Of course, officers could easily choose not to enforce this bad law, but far too many officers have been filmed leaving crime scenes just to hassle citizens with cameras. And the instant the officer started closing the gap between him and the photographer, a law would have been violated in letter, if not in spirit. Villalba is a staunch supporter of law enforcement agencies and his proposal was just an attempt to give officers a little less accountability.

So, despite this bill being ridiculed out of existence, hopes springs eternal in those who feel the public is the worst of their problems. Boston’s police commissioner is now asking for the same accountability halo for his officers.

Boston police Commissioner William B. Evans is calling for laws to regulate the proliferation of cellphone-toting citizens and so-called cop watchers dedicated to recording potential police misconduct — a trend that has given rise to new challenges and risks for officers at crime scenes.

“If we can get legislation that protects both sides, I’m all for it,” Evans told the Herald late last week. “Should you be up in a police officer’s face and agitating them? Absolutely not. Because we’ve seen it through all these demonstrations. It interferes sometimes with us (being) able to look at the crowd and focus on what our mission is.”

Evans is wholly disingenuous throughout the course of this article. He first tries to spin this as a problem caused by citizens. His claim that people are “agitating” officers by getting “up in their faces” may be minimally true, but it’s far more common to see police officers walking up to people filming them and getting in their faces. Generally, citizens filming police activities don’t approach cops. It’s almost always the other way around. So, if there’s an issue here, it should be addressed with officers first, who seem far too willing to abandon the “mission” just to shut down recordings.

“But when you’re just out there for the very reason of, you know, trying to get a gotcha moment, that’s irritating to us,” Evans said, pointing to instances on July 4 and following the March shooting of officer John T. Moynihan, when police were met by a group of vocal video-takers at the edge of the scene.

This sort of argument has been raised before to defend actions taken against photographers. It’s the law enforcement equivalent of the childhood go-to complaint, “He started it!” If officers would simply focus on their jobs rather than citizens and their cameras, there would be fewer “gotcha moments.” Nothing about enforcing the law translates to “taking the bait.” Every officer that shows restraint in the face of someone hoping for a “gotcha moment” will come out of the incident victorious. It will be the photographer who looks ridiculous, rather than the other way around. If Evans is using this as justification for a protective, camera-free space around cops, he’s basically admitting his officers have self-control issues and cannot handle being “irritated.”

Evans goes even further than Villalba, however, when he starts advocating for arresting citizens who don’t leap in the moment they sense an officer might have lost the upper hand in an altercation.

“During the altercation, as officers struggled to subdue the suspect, they noted that they were being videotaped by the large crowd that had gathered,” officers wrote in their report. “In need of help, officers asked members of the crowd and a security guard for help. No help was offered.”

Evans said that should never happen. “I’d also like to see some legislation that if a cop is on the ground struggling with someone, like he was the other night and everybody is videotaping, someone should be held accountable for not stepping up and helping them,” he said.

It would seem that paying out settlements for police misconduct isn’t financially damaging enough. Now, Evans wants to open his department and the city of Boston up to additional lawsuits for injuries sustained by citizens providing mandatory assistance to struggling cops. And what happens if the responding member of the public takes it too far and provides some additional excessive force of their own? The subdued suspect may look at police officers and their immunity and decide it’s much easier to sue a citizen who isn’t protected by this legal shield.

While I understand his frustration that the public seems more interested in watching than helping, the public is usually similarly unhelpful when other citizens are receiving a beatdown. And the larger the crowd, the less likely it is that anyone’s going to put their own lives/health on the line for someone else. Evans says “someone” should be held responsible in situations like this, while discussing a “crowd.” But who? Any random person? All of them? The security guard? If people are going to have their preference to remain uninvolved in altercations criminalized, so should officers who refuse to show the same deference to the public — either by responding to every perceived threat with acts of violence or by pointing out that “protect and serve” isn’t actually part of any police department’s policies or credo.

Evans’ low-key pitch for legislation on these issues shows he truly believes police officers deserve more rights than citizens. He believes cops should work in an irritant-free environment with the knowledge that the general public will put itself in harm’s way to save a public servant.

Filed Under: assisting officers, boston, filming police, photographs, photography, police

NJ Legislators Want To Ban Drone Photography Of 'Critical Infrastructure'

from the your-rights-end-where-our-freaking-out-begins dept

Government paranoia about “critical infrastructure” will now be extended to drone photography, if New Jersey’s proposed legislation is any indication. While law enforcement agencies are still weighing the Fourth Amendment implications of surveillance drones, some local governments are moving ahead with plans to shortchange the First Amendment.

This new legislation makes it a criminal offense to use a drone to take a photograph of “critical infrastructure.” And what is “critical infrastructure”? Any “asset” whose incapacity—even partial incapacity—would have an impact on the physical or economic security, or public health or safety, of the state. This specifically includes highways, waste treatment facilities, bridges, tunnels, and more.

This proposal would codify something many public employees (especially those in law enforcement/security agencies) already mistakenly believe: that photography of public structures is illegal and probably has something to do with terrorism. Even if the structure is already completely viewable with the naked eye, can be viewed via satellite photography and has been the subject of multiple official photo releases, people with cameras around certain structures are considered inherently suspicious. Now, this misguided “security” concern is being extended to eyes in the sky, something the government seems to believe should be in the possession of government agencies only.

The proposed penalties for violations are fairly severe.

Specifically, this bill makes it a fourth degree crime for a person to use a civilian unmanned aerial vehicle, commonly referred to as a drone, to conduct surveillance of, gather evidence or collect information or data about, or photographically or electronically record any critical infrastructure without the prior written consent of the entity that owns or operates the critical infrastructure. A fourth degree crime is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both.

On top of that, the legislation would help the state build a list of “usual suspects.”

The bill also prohibits a person from operating a civilian drone unless it is registered with the Division of Aeronautics in the Department of Transportation. In addition, a person is prohibited from operating a civilian drone unless the person maintains liability insurance coverage to insure against loss resulting from liability for bodily injury, death, and property damage sustained by any person arising out of the ownership, maintenance, operation, or use of the drone. The required minimum coverage is to be in an amount determined by the Commissioner of Banking and Insurance in consultation with the Commissioner of Transportation.

A person who operates a civilian drone without the required registration or insurance is subject to a civil penalty of not less than 1,000forafirstoffenseandnotlessthan1,000 for a first offense and not less than 1,000forafirstoffenseandnotlessthan5,000 for a second or subsequent offense. In addition, for a second or subsequent offense, a person’s civilian drone registration is to be revoked for a period of two years.

So, while law enforcement agencies argue that aerial surveillance has minimal Fourth Amendment impact because public places have a lowered expectation of privacy, they’re also supporting legislation that would grant public structures more protection than a member of the public’s fenced-in backyard. Of course, the Fourth Amendment only deals with privacy. This legislative push concerns security — something that tends to receive higher priority than Constitutional rights.

Then there’s the inherent stupidity of carving out a drone-specific ban. People with regular cameras (or cell phones) will still be able to photograph these structures, as will aerial photographers in planes and helicopters. It’s a very specific paranoia — one limited solely to new tech that’s currently subject to very little government control.

And that’s really what this is all about. Lawmakers have (civilian) drone fever and the only cure is more cowbell legislation. Those pesky men (and women) and their flying machines are harming the nation’s security somehow with their democratization of aerial photography. These legislators obviously feel the only entity that should have full access to the skies and everything below is the government. And if the First Amendment has to suffer some cutbacks, so be it.

Filed Under: critical infrastructure, drones, new jersey, photography