Black angus beef graze in open pastures on a ranch outside of Ledger, Montana, USA. – photo by M. Scott Brauer

We’ve written before about the so-called “Ag-Gag” bills that make illegal unauthorized video and photography of agricultural operations in various states. Today, the New York Times has an update on the increasing number of these types of laws throughout the United States: Videos show cruelty on farm, and taping becomes the crime. The NYT’s reporting connects bills across the country to a business advocacy group called the American Legislative Exchange Council. The organization creates model legislation for state legislatures to adopt such as The Animal and Ecological Terrorism Act, which would prohibit video and still photography of livestock farms and puts violators on a “terrorist registry.”

Though no laws including a terrorist registry provision have yet been passed, Iowa, Utah and Missouri have passed laws that make it illegal to document operations on farms and agricultural operations without authorization. Indiana and Tennessee will soon vote on similar laws, and California, Pennsylvania, and other states are debating similar measures. The Indiana law would require prospective employees to disclose ties to animal rights groups during the hiring process. Animal rights groups say that these laws make it impossible to document animal cruelty on farms and ranches. Opponents of bills have managed to stall or stop Ag-Gag bills in New Mexico, New Hampshire, and Wyoming.

Police arrest OccupyBoston protesters at their second encampment at Rose F. Kennedy Greenway a block from Dewey Square, in downtown Boston, Massachusetts, USA. - M. Scott Brauer

While covering these events police may ask to see your images, recordings or files. Be aware that you do not have to consent to such a request. They may try to intimidate, coerce or threaten you into doing so but “consent” must be voluntary. You should know that absent consent or “exigent circumstances” an officer may not seize your camera. Exigent circumstances only exist where an officer has probable cause to believe a crime has been committed AND that you have captured evidence of that crime on your camera AND that there is also a strong likelihood that such evidence may be lost if the camera is not seized.

Are you planning on covering the Republican or Democratic National Conventions at the end of August and beginning of September? You should be aware of legal and practical issues that may arise during the process of documenting both the conventions and the protests around the conventions. The National Press Photographer’s Association has a handy guide that covers the basics of covering both conventions, ranging from what to do if you’re arrested to how to stay safe in a crowd to dealing with the heat. The guide also includes a brief survey of local and federal ordinances and laws that will apply to people on the scene and educated guesses on how police may treat journalists based on recent actions of police in Chicago during the NATO summit protests earlier this year. For instance, items that could be considered weapons will not be allowed close to the convention areas and include items photographers might bring along such as tripod, monopods, and ladders.

Stay safe out there!

“Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops.” -Gizmodo, 7 Rules for Recording Police

We’ve covered restrictions on photographers before, especially regarding coverage of police. Gizmodo’s recent article, 7 Rules for Recording Police, is an excellent collection of warnings, advice, and tactics, for photographers dealing with police confrontations. The tips all fall under the following headings:

1. Know the Law (Wherever You Are)
2. Don’t Secretly Record Police
3. Respond to “Shit Cops Say”
4. Don’t Share Your Video with Police
5. Prepare to be Arrested
6. Master Your Technology
7. Don’t Point Your Camera Like a Gun

But more than these headings, the article offers practical advice about what do in particular situations. Under “Respond to ‘Shit Cops Say’,” they advise answering a police’s confrontational “What are you doing?” in a peaceful and information manner. Don’t escalate the matter by responding “I’m recording you to make sure you’re doing your job right” or ignoring the question. Instead, say something like “Officer, I’m not interfering. I’m asserting my First Amendment rights. You’re being documented and recorded offsite.” Of course, all of this is well and good when you’re reading the article at your computer; in the heat of the moment, you can expect things to get ugly and for your rights to be violated. The guide covers that, too. It offers tips for using a smartphone to simultaneously archive images and video online or what to do when you get detained.

Well worth a read!

UPDATE (7 May 2012): Thanks to Kyle Hillman for writing in with news that the city of Chicago has announced that they will not enforce these eavesdropping laws during demonstrations at NATO events this month. In March of this year, too, a judge ruled that the law barring recording police activity was unconstitutional. Hopefully this law is not long for the world…

Original post: If you’re planning to cover the NATO events in Chicago in a couple of weeks, you need to be aware of Illinois laws regarding police activity (the main G8 meeting was moved to Camp David, but the NATO Summit will continue as planned). We’ve covered this issue before, but it bears repeating. Under Illinois eavesdropping laws, a number of people have been arrested and prosecuted for recording audio (some in the course of recording video) of police activity. While Massachusetts does not prosecute people for openly recording police activity, Illinois has gone after individuals for both secret and opening recording of police duties. A proposed law in Illinois, HB3944, “exempts from an eavesdropping violation the recording of a peace officer who is performing a public duty in a public place and speaking at a volume audible to the unassisted human ear.” There’s a strong argument to be made that even secret recording of police activity is vital to the public interest in fighting police abuse and corruption; it’s a frightening prospect when police work to undermine the public’s protection against their power. But, in the meantime, it remains illegal in Illinois to record audio of police in the state. If you’re planning to capture video or audio at the upcoming Chicago events, be very careful.

While we’re at it (and thinking of a photographer friends’ experiences in Seattle covering Occupy protests yesterday), get acquainted with your rights as a photographer and journalist. Time Lightbox recently published a handy list of links, many of which will be familiar to long-time readers of this blog:

• The National Press Photographers Association’s Advocacy homepage
• The ACLU’s Know Your Rights Photographers page (they helped make the ridiculous and informative video above)
• Attorney Bert P. Krages’ Photographers’ Rights Pamphlet
• Carlos Miller’s Photography Is Not a Crime blog (which just celebrated its 5-year anniversary; I’d wish another 5 years of success to Miller’s blog if it didn’t mean 5 more years of abuse of photographers…)

Stay safe out there. None of these resources will protect you when the police or anyone else is hitting you or destroying your gear.

M. Scott Brauer - Cattle graze on a ranch near Highwood, Montana.

We wrote previously about Florida and Iowa lawmakers trying to make it illegal to record or photograph agricultural operations without the farm owner’s consent. Now, the Iowa bill has been signed into law, making it illegal to access farms without the owner’s consent and further making it illegal lie on farm job applications in order to gain access to farms. While the law no longer has language specifically addressing photography or video recording, both opponents and supporters of the law say that its intent is to prevent videos of farm operations from being made. Under the law, fraudulently entering a farm would be punishable by up to 1 year in prison and a $1,500 fine. Penalties increase for subsequent offenses. Activists have vowed to continue making videos of alleged animal cruelty, while supporters of the law say it strikes a balance in protecting farmers without preventing workers from reporting animal abuse through preexisting channels.

More states continue to press for similar laws. The Utah State House of Representatives recently passed Utah HB 187, which makes it a crime to record images or sounds of farm activity without the farm owner’s consent. Illinois, Indiana, Minnesota, Missouri, Nebraska, and New York, are also considering such legislation.

As before, if you live in any of these states, contact your legislators.

“I wasn’t surprised that he didn’t like my revisions. After all, it’s his job to look out for Here Media’s interests. But I decided to take him at his word that he wanted to be “as fair as possible to both parties”. So I thought if I could clearly (and calmly) articulate my concerns, I’d have a good chance of a reasonable compromise. The fact that the fee was so low made it hard for him to ask for such broad licensing.” -Bill Cramer, Bill Cramer Dissects Here Media’s Contract

I’ve been mired in contract negotiation for the past couple of days, so the issue is at the front of my mind. Bill Cramer, of Wonderful Machine (of which both Matt and I have been a part at various times), provides a wonderful, real-world example of contract negotiation. In the back and forth, he handles objectionable licensing terms with grace and manages to successfully modify the terms of the shoot to a much more reasonable licensing agreement with the magazine. It’s a useful lesson for when an email hits your inbox that reads “all rights, all media, in perpetuity.”

(via an old APhotoEditor post)

“[B]y their express language, Twitter’s terms grant a license to use content only to Twitter and its partners. Similarly, Twitpic’s terms grant a license to use photographs only to Twitpic.com or affiliated sites. . . . the provision that Twitter ‘encourage[s] and permit[s] broad re-use of Content’ does not clearly confer a right on others to re-use copyrighted postings” -Agence France Presse v. Morel, 10 Civ. 2730 (WHP) (S.D.N.Y.; Dec. 23, 2010)

You may remember Daniel Morel’s copyright fight with Agence France-Presse over photos Morel posted to Twitpic in the early hours of Haiti’s January 2010 earthquake. AFP claimed they could use and license the photos through explicit permission granted in Twitter and Twitpic’s terms of use. Morel filed lawsuits claiming that he maintained copyright on the images, that AFP knowingly infringed his copyright, and that AFP, in not properly crediting Morel, violated the Digital Millenium Copyright Act. Now, a court’s decision on the case may prove beneficial to all content creators in the internet age.

A judge has ruled that Twitter and Twitpic’s licensing terms do not extend to third parties, that Morel has a valid copyright infringement claim, and that any information identifying the copyright holder (so-called “copyright management information”) must be distributed alongside copyrighted material. All three of these rulings are a boon to photographers and other content creators and should have influence well outside the bounds of Twitter and Twitpic. Eric Goldman’s blog has the best analysis of the ruling that I’ve found, though the New York Observer’s “Hands of my blizzard Twitpics” gets an honorable mention. The court’s full ruling is available here.

A California judge ruled that photographer David Morse’s rights as a journalist were infringed when police seized his camera equipment and photos relating to Morse’s coverage of a December 2009 San Francisco area protest. Police used a court-backed search warrant to take the items. Now, a judge has said that the search of the photographer was improper and violated state laws protecting journalists from having their work seized by authorities. The First Amendment Project assisted Morse in defense for the case. Great news. Photographers: know your rights!

(via lightstalkers)

Police arrest a man at the amusement park in Coney Island, Brooklyn, NY. Photo by M. Scott Brauer

The Freeman has an interesting look into various states’ efforts to make illegal the recording of police activity. In Illinois, Massachusetts, and Maryland, wiretapping and eavesdropping laws have been used to prosecute individuals who have recorded police activity in a public location.

“[In three states] it is now illegal to record an on-duty police officer even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.” -Are Cameras the New Guns?

In one example case, motorcyclist Anthony John Graber III was stopped for reckless driving. A plain-clothes police officer stopped him, jumped out of his car waving a gun and screaming, and issued a ticket. Graber had a video camera mounted in his motorcycle helmet; he posted video of the encounter to youtube. Ten days after the police encounter, after police found the video on youtube, Graber was arrested and charged under felony wiretapping laws, which could result in up to 5 years jail time. In December 2009, street artist Christopher Drew found himself in a similar situation in Chicago. Drew was arrested while selling art on the streets of Chicago as a test of the cities anti-peddler law. During the arrest, police officers found a small audio recorder that was recording and charged Drew under felony wiretapping laws; Drew faces 4-15 years in prison. As the Freeman reports, not everyone in the legal realm agrees with these policies: Massachusetts Supreme Court Chief Justice Margaret Marshall dissented to a 2001 ruling upholding charges stemming from recording police activity, “Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals….”

For further reading, keep up with Carlos Miller’s Photography is Not a Crime blog. Since his own arrest in 2007 for photographing Miami police (he was acquitted of all charges), Miller has been chronicling cases of First Amendment violations, many of which involve photographers arrested for taking pictures in public places. And take a look at the excellent Photographer’s Rights pamphlet for US photographers.

(via metafilter)

UPDATE: In 2010, charges against Anthony John Graber III were dismissed by a Maryland judge. The ruling “makes it clear that police officers enjoy little expectation of privacy as they perform their duties” and helps narrow the definition of wiretapping in the state’s laws. In the decision, the judge wrote that the situation “took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch, conclude that the troopers had any reasonable expectation of privacy in their conversation with the defendant which society would be prepared to recognize as reasonable.”

Jonas Lara had been fighting the Los Angeles court system for the better part of this year when he learned that his charges were dropped. PDNPulse reports that Lara was arrested while working on a long-term documentary essay about graffiti writers and charged with trespassing, vandalism, and the destruction of a fence at the location. It’s very similar to Ethan Welty’s case, which we recently wrote about. After appealing to the ACLU, who turned down the case, Lara appealed to friends, family, and colleagues to set up a legal fund so he could fight the bogus charges. Armed with this legal fund, Lara hired a lawyer who hit the ground running with legal challenges to the prosecution’s case. Key evidence had gone missing, and the charges were lessened. Then, after talks with the property owner, Lara agreed to pay a $200 restitution to compensate the property owner for money spent on the cleanup, other charges were dropped, and the judge ordered the Los Angeles Police Department to return Lara’s gear. Crucial to the case, apparently, were letters from Lara’s colleagues affirming his work as a journalist and evidence such as IRS business registration showing that he is a working photojournalist.

I have a feeling we’ll be seeing more cases like this as staff jobs disappear and news organizations shrink. The news will still be gathered, but at much more considerable risk to journalists. Without the institutional and financial support a newspaper, freelancers are stuck out in the cold when legal problems arise. As seen in this case, legal fees can be daunting and criminal charges are frightening; were it not for donations and support from friends, family, and colleagues, the photographer likely would have been unable to fight the bogus charges and escape jail time or get his gear back.