Advocacy

APA Opposes Senate Bill No. 5650 / Assembly Bill No. 7904

June 15, 2015

APA Memorandum in Opposition to
Senate Bill No. 5650 / Assembly Bill No. 7904

The American Photographic Artists (APA) is strongly opposed to Senate Bill 5650 and its companion legislation, Assembly Bill 7904, which would grant a seventy-year retroactive and descendible right of publicity to all deceased residents of New York State, regardless of their celebrity status. If enacted, such legislation will cause serious economic harm to our New York State members who photograph people as part of their jobs, whether doing so as employees of news organizations or as freelancers. This “Right of Publicity” will unconstitutionally deprive photographers and others of the right to exercise property and copyright interests in their still, filmed and recorded images.

American Photographic Artists (APA) is a 501(c)(6) not-for-profit association for professional photographers. The American Photographic Artists is a leading national organization run by and for professional photographers. With a culture that promotes a spirit of mutual cooperation, sharing and support, APA offers outstanding benefits, educational programs and essential business resources to help its members achieve their professional and artistic goals. Headquartered in Santa Fe, NM with chapters in Atlanta, Los Angeles, Chicago, New York, San Diego, San Francisco, Charlotte, the Northwest and Washington, DC, APA strives to improve the environment for photographic artists and clear the pathways to success in the industry. Recognized for its broad industry reach, APA continues to expand benefits for its members and works to champion the rights of photographers and image-makers worldwide.

Recognized as the heart of the media industry, New York State has always been at the forefront in upholding the First Amendment and its concomitant rights. Substantially expanding the breadth of a statutory right of publicity creates a burdensome and retroactive statute that will have a crippling and chilling effect on expressive speech. Such legislation will require representatives and owners of valid federal copyright registrations in images depicting any person (not just celebrities) domiciled in New York State who died after 1945, to obtain permission from heirs for any use that is considered as a vaguely defined “commercial purpose.” No descendible right of publicity has previously existed and, these deceased persons have never specifically transferred this right. Instead of heirs inheriting these rights, it is more likely that a corporation, with no interest in New York State, and whose only interest is in exploiting publicity rights and restricting photographers and their licensing representatives from contractually dealing with preexisting images, will benefit from this newly created ex post facto right. Photographers and licensing representatives will suddenly lose a right they have had for more than 100 years, with this unconstitutional taking.

The language of this bill is overbroad, ambiguous and vague. It invites unnecessary and burdensome litigation. Application of the defined term “commercial purpose” would dispense with over 100 years of judicial interpretation of what constitutes “advertising and trade purposes” under the 1903 enacted NY Civil Rights Law § 50 & 51. Most importantly, the language in Section 34 Exemptions on Use Restrictions fails to provide a clear exemption for expressive works. Moreover, it conditions the exemption for expressive works where the work “does not contain an image or likeness that is primarily commercial, not transformative and is not otherwise protected by the First Amendment to the United States Constitution or New York state constitution.” The bill fails to define what would make an image or an individual’s likeness “primarily commercial” or “transformative.” It unconstitutionally restricts visual images and other expressive works and will have a chilling effect on image creators and licensors and those that rely on access to visual imagery in creating new works.

The United States Supreme Court has ruled many times that any law that results in self-censorship is worse than a statute that specially bans or regulates protected speech. If a law “has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.” See Smith v. California, USC 361 U.S. 147 (1959).

The proposed legislation will most certainly increase the costs and burdens of licensing images, requiring increased fees and burdensome approvals for previously permitted uses. Photographers and their representatives will likely bear the undue burden of researching whether a deceased individual’s domiciliary was New York State, and if so, locating the owner of their publicity right and securing approval, which may never be possible. These individuals and companies can ill afford these costs and the end result will be fewer images licensed, and fewer jobs in New York State.

The consequences of departing from clear law is too great to justify merely satisfying the desire of a few celebrities’ agents who want to unreasonably exploit photographers and the licensing of their images on which they rely for their livelihoods. The constitutional concerns, undue burdens and litigation risks such a law would impose on our members are far too high to justify any benefits it may provide. The chilling effect would be immediate and overwhelming.

For the above stated reasons, APA strongly opposes S.5650/A.7904 and urges that this legislation be defeated.

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APA Comments on Public Land Photo Permits

As federal agencies and local municipalities search for ways of generating revenue from untapped resources, photographers and filmmakers are finding themselves more and more in the crosshairs of ever more onerous and costly shooting permits and policies.

APA continues to monitor these changing policies and is working to ensure fairness, constitutionality and viability for all concerned.

With that in mind, APA was asked to contribute comments to a letter being written by council for NPPA (National Press Photographers Association) addressing the unlawful and inequitable stipulations included in the newly drafted photo permitting policies of Fairfax County, Virginia as they pertain to shooting on public lands.

Below is the letter that has been sent this week expressing our concerns. Watch this space for further news.

National Press Photographers Association
1100 M&T Center • 3 Fountain Plaza • Buffalo, NY 14203
Phone: 716.566.1484 • Fax: 716.608.1509
lawyer@nppa.org

Via Email

February 4, 2015

Fairfax County Park Authority
Public Information Office
12055 Government Center Parkway, Suite 927
Fairfax, VA 22035-1118

RE: Proposed Photography Permits & Fees

To the Fairfax County Park Authority Board:

The undersigned news organizations, photographers’ organizations and First Amendment advocacy groups wish to express our strong objections to the Fairfax County Park Authority’s (FCPA) proposed permit and fee structure and the abridgments they would impose on the First Amendment rights of citizens and visual journalists.

Your proposed rules create an unnecessary and burdensome distinction between amateur and professional photographers. Whether the images being made and recorded are for journalism, weddings or any other type of photography/filming (hereinafter “photography”), distinguishing between professional photographers and amateurs who are doing precisely the same things, at the same times, and in the same places, is arbitrary, capricious and unconstitutional. As we have noted in comments regarding federal legislation governing photography on U.S. Park lands – the focus should be on whether the activity places an unusual burden on the land resource. It is also important to note that most major municipalities in the U.S. where photography occurs, have adopted a similar approach to the one we are recommending that protects the constitutional rights of all parties.

Our opposition to the currently proposed language that “all professional photographers are required to obtain a professional photography permit” and that “with the permit you will have a scheduled use of the park area, avoiding conflicts with other groups and events” is based upon its being overly broad and vague while at the same time imposing a time-table for such activity. Additionally, the 5 day permit processing period proposed for FCPA approval creates a potential prior restraint on photography of all types.

We believe that the proper question to ask is whether the photography creates any unusual impact on the land. If the activity presents no more impact on the land than that of the general public, then it should be exempt from permit and fee requirements. A permit should only be required if the photography takes place at locations where members of the public are not allowed, or if the photography substantially impedes public access to areas where the public is normally allowed -- and then only when the photography is clearly commercial in nature. If the primary FCPA Letter purpose is to inform the public, then no permit or fee should be required – and unless the photography is clearly commercial, the default is that it should be considered informational.

Unfettered access is necessary in coverage of the important public policy issues that arise in the conservation and use of public park resources. Journalists should be free to report to the public on public issues from public lands at any time. That protection should extend not only to individuals traditionally identified as newsgatherers, but also for freelance visual journalists and members of the public who may use cameras on a speculative basis to photograph or film activities on public lands without having an assured media outlet for their work.

Therefore, we strongly urge the FCPA to revise its proposed rules accordingly to craft an unambiguously worded policy that protects not only park resources but our First Amendment guarantees.

Thank you very much for your time and attention in this matter. We look forward to your response.

Sincerely,
Mickey H. Osterreicher

Mickey H. Osterreicher
NPPA General Counsel

On behalf of:
American Photographic Artists
American Society of Media Photographers
American Society of News Editors
Associated Press Media Editors
Association of Alternative Newsmedia
Graphic Artists Guild
North American Nature Photography Association
PACA Digital Media Licensing Association
Radio Television Digital News Association
Reporters Committee for Freedom of the Press
Society of Environmental Journalists
Society of Professional Journalists
White House News Photographers Association

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Eugene Mopsik to Represent APA and Visual Creators on Plus Coalition Board

Santa Fe, NM (January 15, 2015) – American Photographic Artists (APA) is very excited to announce that Eugene Mopsik will represent APA and all visual creators on the PLUS Coalition Board of Directors, beginning 2015.

“Gene’s history as a passionate advocate for artists’ rights has earned him a high level of respect from artists’ organizations, publishers, lawmakers and government agencies, not only in the USA, but around the world,” said PLUS Coalition President Jeff Sedlik.

The Picture Licensing Universal System (PLUS) Coalition Board of Directors governs the Coalition, with one seat dedicated to each industry engaged in creating, distributing, using and preserving images. Trade organization representatives from the various sectors are nominated by the organizations to hold these seats.

We chose Gene for his expertise concerning advocacy matters for artists, and because we felt that keeping him in his current Board position seemed like the best thing for the industry and the important work being done by PLUS, stated APA President Theresa Raffetto.

As a new member of American Photographic Artists, Mopsik will also be serving on the Advocacy Committee of the APA to advise on industry issues. APA Vice President, Michael Grecco, currently serves on the PLUS Industry Advisory Council.

Mopsik said he was very pleased that with the support of APA, he be will be able to continue his work as Vice Chairman of the PLUS Board of Directors, representing visual creators. "APA appreciates the value of PLUS and the PLUS Registry, and the service it can provide in the identification and management of image rights for APA members and the broader creative community.”

“Gene understands that in a globally networked marketplace, visual artists must think globally, act globally and find global solutions to our challenges,” said Sedlik. “It has been an honor to work with Gene, and I look forward many more years of collaboration.”

About American Photographic Artists (APA)
The American Photographic Artists (apanational.org) is a leading national organization run by and for professional photographers. With a culture that promotes a spirit of mutual cooperation, sharing and support, APA offers outstanding benefits, educational programs and essential business resources to help its members achieve their professional and artistic goals. Headquartered in Santa Fe, New Mexico with chapters in Atlanta, Los Angeles, Chicago, New York, San Diego, San Francisco, Charlotte, the Northwest, Washington, DC, and APA Editorial Photographers, APA strives to improve the environment for photographic artists and clear the pathways to success in the industry. Recognized for its broad industry reach, APA continues to expand benefits for its members and works to champion the rights of photographers and image-makers worldwide.

About Picture Licensing Universal System (PLUS)
The PLUS Coalition (www.PLUS.org) is an international non-profit initiative on a mission to simplify and facilitate the communication and management of image rights. Respected associations, leading companies, standards bodies, scholars, industry experts and working professionals in 150 countries have collaborated to create the PLUS Standards and PLUS Registry, making it easier to communicate, understand and manage image rights on a global scale. The PLUS Coalition exists at the crossroads between technology, commerce, the arts, preservation and education.

Juliette Wolf-Robin
National Executive Director

American Photographic Artists

executivedirector@apanational.com
apanational.org
917-603-4756

APA Stands against Getty Move to Make Images Free

Once again Getty Images has failed photographers, this time by making the bulk of its collection available to be shared online free of charge for non-commercial users.  American Photographic Artists, APA, stands against this decision and is currently working with other organizations on developing a statutory licensing system.

"I feel the Getty plan excludes the need of the artist creating the work and only benefits Getty Images,” says Michael Grecco, chair of the advocacy committee for American Photographic Artists. “A better plan would be a system where visual artists get paid for the social media use and reprographic use of their images.”

Grecco and other APA photographers were disillusioned with Getty before this week’s announcement and already removed their images from the Getty Images library in favor of negotiating licenses, picture by picture.

Lawyer James Silverberg says APA expects to have a proposal ready within the next year on how artists can be compensated more effectively for the online usage of their work.

“Most industrialized nations in the world are already paying visual artist reprographic rights,” says Grecco. “Entities need to be putting an equitable situation in place, instead of giving images away for free like Getty is doing. This would serve better both Getty and the artist.”

American Photographic Artists encourages their members to start looking out for their needs and severing ties with agents like Getty that do not work in their best interest.

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