That is not my experience. I retained all copies and negatives of our wedding
photos, and more recently we we purchased a CD of our son's graduation photos,
from which I can print (or email or whatever) whatever I like.
Also, I fail to see how a photographer is "participating" in a wedding ceremony
and reception, any more than the bartender or the limo driver is
"participating." Rather, it seems to me that a photographer is merely service
for hire, and is recording the event. When one hires a plumber or an
electrician, it is their knowledge and expertise you're paying for, above the
cost of materials. They are not "participating" in your "lifestyle" -- whatever
that is.
Wouldn't a businessperson acting in a professional manner instead be more
diplomatic -- and steer a customer he/she didn't like to another professional
"whose tastes and experience may be better suited to your expectations." My
point is that a customer can be redirected in such a way that they feel they
are being served with some respect. Instead, the photographer in question
appears to have acted otherwise.
----- Original Message -----
From: "Mark Scarberry" <mark.scarbe...@pepperdine.edu>
To: religionlaw@lists.ucla.edu
Sent: Saturday, August 24, 2013 2:23:51 PM
Subject: Re: A right not to be compelled to create expression?
Professional photographers generally retain copyright to graduation photos,
wedding photos, etc., so you have to go back to them for additional prints. At
least that's my experience.
Mark Scarberry
Pepperdine University School of Law
Sent from my Verizon Wireless 4G LTE Smartphone
-------- Original message --------
From: "Gaubatz, Derek" <dgaub...@imb.org>
Date: 08/24/2013 10:57 AM (GMT-08:00)
To: "'religionlaw@lists.ucla.edu'" <religionlaw@lists.ucla.edu>
Subject: Re: A right not to be compelled to create expression?
Actually, the creator is the copyright owner of the work unless the purchaser
successfully negotiates for a work for hire agreement.
>From : Marci Hamilton [mailto:hamilto...@aol.com]
Sent : Saturday, August 24, 2013 01:26 PM
To : Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Cc : Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject : Re: A right not to be compelled to create expression?
Point of law-- Most freelancers are subject to work for hire agreements that
divest copyright and make the purchaser the "owner" of the speech for all
purposes.
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Aug 24, 2013, at 12:37 PM, "Volokh, Eugene" < vol...@law.ucla.edu > wrote:
Well, New Mexico law covers “any establishment that provides or offers its
services ... to the public, but does not include a[n] ... establishment that is
by its nature and use distinctly private.” That does mean that a freelance
writer who only writes on behalf of a limited set of clients, rather than
offering his services to the public at large, wouldn’t be covered by this
particular statute. But a freelance writer who does promote his services to the
public would qualify, even if he exercises some selectivity. (Indeed, Huguenin
says that there are other photography commissions she won’t take, such as for
pornography, horror films, and the like, though chances are that she won’t even
be approached for them in the first place. Conversely, my sense is that many
freelance writers who offer to hire themselves out to the public will take the
great majority of jobs that come their way, even though they too would draw the
line somewhere.) So I can’t see how such freelance writers would be immune.
But in any event, even if a freelance writer or photographer is unselective, I
can’t see how that person’s expression isn’t “her own.” To be sure, the public
might not see an unselective photographer’s/writer’s speech as equally
expressing her own ideology. But the writer or photographer would still be
creating the expression herself, using her own artistic and literary creative
judgment.
The question, then, is: Should people have a right not to be compelled to
create expression they think is wrong, just as they have a right not to be
compelled to distribute expression they think is wrong? It seems to me that the
logic of Wooley should extend equally to both rights. If Maynard can’t be
required to carry the motto “Live Free or Die” on his car, then a Maynard who
is a generally will-take-most-commissions freelance writer can’t be required to
write a press release or organizational newsletter that expresses the view
“Scientology is good.” Indeed, the requirement to actually create expression
seems much more burdensome than simply the requirement to carry a slogan on
one’s car.
Finally, note that the New Mexico Supreme Court expressly disclaimed any
argument that mere wedding photography is just too banal to be expressive for
purposes of this analysis (not that Eduardo so argued below, but I’ve seen that
argument elsewhere). “This determination [that Elane Photography is subject to
the public accommodations law] has no relation to the artistic merit of
photographs produced by Elane Photography. If Annie Leibovitz or Peter
Lindbergh worked as public accommodations in New Mexico, they would be subject
to the provisions of the NMHRA.”
Eugene
From: religionlaw-boun...@lists.ucla.edu [
mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Penalver, Eduardo
Sent: Friday, August 23, 2013 12:23 AM
To: Law & Religion issues for Law Academics
Subject: Re: New Mexico decision and other First Amendment expression
It seems to me, the more selective they are, (1) the less likely they are
covered by the statute (the predicate for the 1A claim) and (2) the more the
speech is their own (which does seem relevant to a compelled speech claim).
On Aug 22, 2013, at 11:23 PM, "Volokh, Eugene" < vol...@law.ucla.edu > wrote:
<blockquote>
My sense is that many freelance writers are indeed pretty unselective. But, in
any event, why should the writer’s or photographer’s selectivity or
unselectivity affect the First Amendment compelled speech analysis? I would
think that a freelance writer who picks and chooses – but absolutely refuses to
write things for the Church of Scientology – and the freelance writer who takes
99% of his commissions but thinks that the Church of Scientology is just beyond
the pale should have the same First Amendment rights not to create expression
that they think is wrong (or maybe that they think is just too far wrong).
Eugene
From: religionlaw-boun...@lists.ucla.edu [
mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Penalver, Eduardo
Sent: Thursday, August 22, 2013 9:05 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Mexico decision and other First Amendment expression
Not necessarily. I don't think your hypothetical writer would necessarily count
as having held himself out as open to the public to ply his trade as you've
described it. That is, I don't think that advertising by itself would be enough
to count as holding oneself out. Here, the photographer did just that - held
herself out as open to all comers (except the disfavored group) at a price.
Apart from same sex couples, there's nothing in the opinion suggesting much
selectivity in her business model. Her holding out was an essential premise
underlying the court's decision. She did not contest her status as a public
accommodation, after all.
On Aug 22, 2013, at 10:43 PM, "Volokh, Eugene" < vol...@law.ucla.edu > wrote:
<blockquote>
A quick question, focusing on the compelled speech side of the issue rather
than just the RFRA side. The court’s logic isn’t limited to sexual orientation
discrimination (as opposed to other kinds of discrimination) or to
photographers (as opposed to other creators of protected expression). Say that
a freelance writer, who advertises himself to the public at large, is asked by
the Church of Scientology (or the LDS Church or any other religious group) to
write promotional material for it.
He says no: He refuses to create speech that he views as being factually or
morally false, for instance by glorifying as right, worthy, holy, or beautiful
that which he believes is morally corrupt. Following Solzhenitsyn, he wants to
“Live Not by Lies” – to “not write, not sign, not print through any means even
a single phrase that distorts, in his opinion, the truth,” to not, “in
painting, sculpture, photography, music, or through technological means”
“depict, accompany, or retransmit even a single lying thought, not a single
distortion of the truth, that he recognizes” (quotes are from Solzhenitsyn’s
“Live Not by Lies” essay).
The Scientologists then sue him for his discriminating against them based on
religion. Am I right in thinking that, under the New Mexico Supreme Court’s
reasoning, requiring him to pay damages would be seen as constitutionally
permissible, and as not being an unconstitutional speech compulsion? If so, is
that a constitutionally sound result?
Eugene
<blockquote>
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