d. Photo journalist

There is no published case law addressing this issue. In Weathers v. American Family Mut. Ins. Co., 17 Media L. Rptr. (BNA) 1846 (D. Kan. 1990), the First Amendment privilege (although overcome) was applied to a newspaper photographer.

 

In the unpublished decision of Prager v. Campbell Cty. Mem’l Hosp., the court held that a reporter’s photographs of a public event were not protected by the privilege.  No. 10-CV-0202-J, 2011 U.S. Dist. LEXIS 160591 (D. Wy. May 18, 2011).  In Prager, the plaintiff was injured in a single-car rollover in which there were no eyewitnesses and the first responders’ video of the scene had been inadvertently destroyed.  The reporter had arrived at or near the time of the first responders and took photographs of the incident.  The plaintiff alleged injuries as a result of the defendant hospital’s and doctor’s failure to diagnose a neck injury.  The court found that “given the nature of these photographs (i.e., they were not taken from a secret location or of a secret event),” and the fact that the photographs were not obtained from a source under promises of confidentiality, no privilege existed and, even if it did, the Silkwood factors also supported disclosure.  Id. at *5.  The court distinguished Silkwood, stating “[f]urthermore, these are pictures, not a reporters interview and/or source material.”  Id. at *6.

No reported First Circuit cases addressing the reporter’s privilege have specifically defined the term “photo journalist.”

The Second Circuit has not explicitly defined the term "photojournalist." There appears to be no caselaw in the Second Circuit addressing whether the reporter's privilege applies to photojournalists, but under the Von Bulow test it appears that they would be covered. See also cases involving video outtakes, e.g. In re NBC, 79 F.3d 346 (2d 1996).

Courts in the Third Circuit do not appear expressly to have addressed this question, but under the three-part test it employs, there appears little doubt that photojournalists would qualify for the First Amendment-based privilege. See In re Madden, 151 F.3d at 130.

The Fourth Circuit privilege does not define “photojournalist.” In the one case specifically addressing the applicability of the privilege to photos, Stickels v. Gen. Rental Co., the newspaper, not the reporter, asserted a privilege. 750 F. Supp. 729, 730, 18 Media L. Rep. 1644 (E.D. Va. 1990). However, there is nothing in the law to indicate the reporter/photographer, or any news photographer, could not assert the privilege in his or her own name.

No reported decision of the Fifth Circuit addresses who constitutes a "photojournalist" for purposes of asserting the qualified privilege.

The Sixth Circuit denied First Amendment protection to a television journalist whose videotape outtakes showed the likeness of a murder suspect. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987). The reason for denying the journalist protection was not based on his status as , in essence, a photojournalist.

There is no statutory or case law addressing this issue.

The Ninth Circuit does not explicitly define the term “photojournalist” when deciding whether an individual attempting to invoke the reporter’s privilege has standing. The Ninth Circuit determines standing based on the activity of the individual claiming the privilege, rather than on the professional affiliation of that person; therefore, there is no need for the court to formulate a definition of such a term. Shoen I, 5 F.3d at 1293 (following the Second Circuit’s reasoning in Von Bulow, 811 F.2d at 136).

There is no Alabama statutory or reported case law specifically defining "photojournalist"; however, in Knighten v. Daewoo Motor America, No.: CV-00-2370, 30 Med. L. Rptr. 2600 (Madison County, Ala. Cir. Ct., Sept. 19, 2001), the court applied, without discussion, Alabama's shield statute, as well as the United States Constitution and the Alabama Constitution, in quashing a subpoena seeking videotapes "in their unedited form" from a television station. The television station had voluntarily produced videotapes of the material that was actually broadcast, but the court held the station was protected from disclosure of the unedited videotapes. Id. It is logical to assume that the protection provided to the television station in Knighten would apply with equal force to videographers and/or photojournalists.

In an unreported order, a United States magistrate judge addressed the application of the First Amendment privilege to videotapes made by videographers who were working for two television stations. Ellis v. Hicklen, No. 01-BU-3290-M (N.D. Ala. Apr. 8, 2002). Although the court held that the television stations must produce the videotapes, the court authorized the television stations to redact any audio or video of interviews to which an independent assertion of the privilege could be made. Id. Allowing the television stations to redact privileged information from the videotapes, such as portions of the tapes that would reveal the identity of any undisclosed sources, affirmatively suggests that the magistrate believed that photojournalists are covered by the reporter's privilege.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not had occasion to address the definition of a "photojournalist" for purposes of applying the privilege. The shield law does not define "photojournalist."

A.R.S. §§ 12-2214 and 12-2237 do not include a definition of "photo journalist," and no reported decision addresses the issue in Arizona. In Bartlett, the court held that no privilege protected a television station from producing a videotape of an automobile accident victim at the accident scene. The court approved of the lower court's reasoning that "one picture is worth a thousand words." Bartlett, 150 Ariz. at 184, 722 P.2d at 352. If the requisite element of confidentiality had been met, however, the privilege might well have applied to protect disclosure of the videotape. See id. 150 Ariz. at 183, 722 P.2d at 351.

No statute or case has defined "photo journalist."

California’s reporter’s privilege protects all persons “connected with or employed upon” a media organization, which presumably extends to photo journalists. Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070. The enactments do not specifically mention photo journalists in their scope of protection; however, the California Supreme Court has applied the privilege to protect photographers. See New York Times Co. v. Superior Court, 51 Cal. 3d 453, 796 P.2d 811, 273 Cal. Rptr. 98 (1990).

By virtue of including observations, photographs, films, recordings, videotapes and audiotapes in the definition of news information, the statute clarifies that a photojournalist has standing to assert the privilege.

There is no definition of "photojournalist," but the information protected by the Shield Law includes "pictorial material," including "photographs, video or sound tapes, film or other data of whatever sort in any medium." Conn. Gen. Stat. § 52-146t(a)(1).

No statutory or case law addressing this issue exists.

Implicitly covered by the statute, and recognized by common law. 10 Del. C. § 4320 (4); Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super. 1994).

The District’s shield law does not define “photojournalist.”  However, the statute applies to “any person who is or has been employed by the news media in a news gathering or news disseminating capacity.” D.C. Code § 16-4702.

A photojournalist is protected by Florida’s statutory privilege if he or she is regularly engaged in photographing or recording news for gain or livelihood and obtained the information at issue while working as an employee of or contractor for a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. § 90.5015(1)(b), Fla. Stat. (2023).

The privilege applies to a full or part time photo journalist as well as any person "engaged in the gathering or dissemination of news." O.C.G.A. § 24-5-508.

There is no current Hawai‘i statute or other authority addressing this issue.

The Idaho cases do not define “photojournalist.” However, the Salsbury case involved television videotape and the decision makes no distinction between a photojournalist (or, videographer) and a press reporter.

Although the Statute does not define “photo journalist,” Illinois courts have held that photographers are considered “reporters” under Section 8-902(a). See, e.g., People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 557 (2001) (concluding that the Herald’s photographers unquestionably were engaged in the business of collecting news for publication in a news medium and were considered “reporters” under the Statute).

The Indiana shield law does not define “photojournalist,” but a photojournalist would probably be considered a “reportorial employee” under Ind. Code § 34-46-4-1.

Iowa case law also does not define "photojournalist".  However, in Bell v. City of Des Moines, 412 N.W.2d 585, 14 Med. L. Rptr. 1729 (Iowa 1987), the court protected the reporter’s video footage that was not broadcast and thus, would provide support for protection of work product of photographers and videographers.

As noted above, the expression “journalist” is defined at K.S.A. 60-480(a), which provides that:

 

“Journalist” means: (1) A publisher, editor, reporter or other person employed by a newspaper, magazine, news wire service, television station or radio station who gathers, receives or processes information for communication to the public; or (2) an online journal in the regular business of newsgathering and disseminating news or information to the public.

 

The statutory definition of “information,” in turn, refers specifically to “photographs, tapes and other recordings.”  K.S.A. 60-480(b).  Thus, although the definition of “journalist” does not refer specifically to photographers and videographers, it seems clear that such individuals are entitled to protection.

For purposes of federal question litigation in federal courts, see Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977), which extended protection to a documentary filmmaker.

Neither the shield statute nor Kentucky case law defines "photojournalist." The statute, KRS 421.100, applies to any persons engaged or employed by or connected with a newspaper, television or radio broadcasting station.

Neither the state nor federal courts in Louisiana have addressed the issue of a reporter's privilege as it relates to photo journalists. However, the shield law's definition of "reporter" includes "any person regularly engaged in the business of collecting . . . for publication through a news media," and the definition of "news media" includes television as well as persons "engaged in the making of news reels or other motion picture news." La. R.S. 45:1451. In addition, the definition of "news" includes "photographic" information. La. R.S. 45:1459(A). Moreover, photographers are expressly included within the statutory protection given to reporters and news media in their response to subpoenas for unpublished information. La. R.S. 45:1459(B)(1).

Maine’s courts have not addressed this issue.

Md. Cts. & Jud. Proc. Code Ann. § 9-112(b) -- Persons affected are described as those employed by the news media in a news gathering or news disseminating capacity; independent contractors of the news media acting within the scope of a contract in any news gathering or news disseminating capacity; and enrolled post-secondary students engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in connection with a school-related activity.

There is no statutory or case law definition of "photo journalist."

Courts have not defined "photojournalist," for purposes of the privilege.

Neither case law nor the statutes granting the news reporter’s privilege contain any definition of photo or media journalists. Similarly, the case law does not distinguish among members of the media.

Courts have applied the privilege to protect photojournalists. See Findings of Fact, Conclusions of Law and Order, State v. Berglund, No. K5-00-600125, Ramsey Cty., Minn., Dist. Ct., dated April 12, 2000 (compelling city to return original videotape that police had seized from cable access show personnel).

Cases involving photojournalists, but denying protection for other reasons, include State v. Turner, 550 N.W.2d 622 (Minn. 1996), and State v. Knutson, 539 N.W.2d 254 (Minn. App. 1995).

Neither the opinions from the federal district courts of Mississippi nor the selected trial court orders define "photojournalist" for purposes of applying the qualified privilege; however, in City of Jackson v. Crawford, Municipal Court of Jackson, Mississippi, No. 88-0219 (May 20, 1988), the trial court applied the three-part analysis and found that the party seeking unpublished news photographs from a news photographer had not overcome the qualified privilege. Additionally, in Hawkins v. Williams, Hinds County Circuit Court, No. 29,054 (Mar. 16, 1983), a photographer for a newspaper successfully preserved her qualified privilege from testifying about an incident she witnessed in her capacity as a photographer.

There is no statutory or case law addressing this issue.

Photojournalists are not separately mentioned in the law. Linda Tracy was a videographer and the privilege applied to her. Whether or not a photojournalist in another case would receive the protection of the law, would depend on that person's relationship with the named organizations.

The statute does not define photojournalist but provides coverage to photojournalists. See Neb. Rev. Stat. § 20-145(5), which includes within the definition of unpublished or nonbroadcast information (which need not be disclosed) "outtakes, photographs, film, tapes or other data of whatever sort."

In an unpublished opinion, a trial court expressly held the shield law privilege to be applicable to video outtakes which had not been broadcast. Frolio v. Pinkelman, Doc. 1057, Page 721 (Dist. Ct. Douglas County, NE, 1-10-07).

NRS 49.275 does not specifically reference photojournalists.

There is no statute or case involving a photojournalist.

Although "photojournalist" is not defined under the privilege, because the statute states that the privilege extends to any "person engaged on, engaged in, or connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated," it has been interpreted to include photojournalists. N.J.S.A. 2A:84A-(a).

Neither the rule of evidence nor the statute mentions “photo journalists,” but both are sufficiently broad and general to include them within the class of privilege-holders. See supra pt. IV(A)(1)(a).

Journalists engaged in "filming" and "photographing" are explicitly included in Civil Rights Law § 79-h(a)(6), which covers "pictorial" and "photographic" news. § 79-h(a)(8). A court applied the Shield Law to a photojournalist in O'Neill v. Oakgrove Construction, Inc., where the plaintiff in a civil action sought nonconfidential photographs of an accident scene. 71 N.Y.2d 521, 528 N.Y.S.2d 1 (1988).

Any person who photographs or records information for dissemination via any news medium falls within the definition of "journalist" under the law. Therefore, photojournalists may claim a "journalist's" privilege. N.C. Gen. Stat. § 8-53.11(a)(1).

The statute does not define “photojournalist.”

Ohio Revised Code § 2739.04 (broadcasters)

No person engaged in the work of, or connected with, or employed by any noncommercial educational or commercial radio broadcasting station, or any noncommercial educational or commercial television broadcasting station, or network of such stations, for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer, or committee thereof. . . .

Ohio Revised Code § 2739.12 (newspapers)

No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.

Photojournalists are covered by the statutory privilege.

ORS 44.510 expressly includes "pictorial or electronically recorded news or other data," and therefore the product of photojournalists is protected. State ex rel. Meyer v. Howell, 86 Or. App. 570, 740 P.2d 792 (1987). However, a television cameraman may be required to testify as to his personal observations. State v. Pelham, 136 Or. App. 336, 901 P.2d 972 (1995).

The Pennsylvania Shield Law applies to photojournalists, as it protects anyone “engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news.” 42 Pa. Cons. Stat. § 5942(a).  But, the law only protects confidential sources and information that might disclose the identity of a confidential source.  See Shetler v. Zeger, 1989 WL 234087, at *5-6 (Franklin Cty. C.C.P. June 1, 1989) (implying Shield Law applies to photojournalists but holding that no confidential source was implicated in the case).

Pennsylvania trial courts have held that photographers are protected by the First Amendment privilege, although their photos might not be protected if they are merely records of events similar to personal observations of objects in plain view in public spaces and if the party seeking the information otherwise overcomes the privilege. See In re Pittsburgh Citizen Police Review Bd., 29 Media L. Rep. 1156, 1158 (Allegheny Cty. C.C.P. Oct. 12, 2000) (newspaper photographs taken in course of newsgathering activity protected by qualified privilege); Shetler, 1989 WL 234087, at *6. But see Commonwealth v. Linderman, 1992 WL 563407, at *2 (Chester Cty. C.C.P. Sept. 4, 1992) (holding, pre-Bowden, that photographer was not protected by a First Amendment privilege because “the long and short of the argument regarding a constitutional privilege is that there is none”); Commonwealth v. Ruch, 28 Pa. D. & C.3d 488, 492, 1984 WL 605, at *2 (Montgomery Cty. C.C.P. Jan. 12, 1984) (photographs of object in plain view in or from public areas not protected).

The term "photo journalist" is not specifically mentioned in the Rhode Island Shield Law. However, the Rhode Island Shield Law applies to "news photographers" in that "no person shall be required by any court, grand jury, agency, department, or commission of the state to reveal confidential association, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as a . . . news photographer." R.I. Gen. Laws § 9-19.1-2.

There is no definition of "photojournalist," but if a photojournalist is engaged in the gathering and dissemination of news, the privilege applies.

Not defined.

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). Neither the statute nor case law applying the statute expressly addresses whether photojournalists are covered. Nevertheless, the protection afforded by the shield law is broad and appears to apply to most types of newsgatherers.

There is no specific definition of photojournalist under the Texas shield law, but a photojournalist likely falls into the definition of a journalist.

Photojournalists fall within the definition of “news reporter” under Rule 509(a)(1).

Although they are not specifically identified in the Vermont Shield Law, the statutory definitions of “journalist” and “journalism” are broad enough to include photo journalists.  See 12 V.S.A. § 1615(a).

The case law does not define “photojournalist.”

Washington's case law has not yet squarely addressed this issue. The state courts would likely apply a First Amendment privilege that is based on broader considerations than newsgathering interests. See Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990).

Also see Section 5 of the shield statute, which defines the covered "news media." See RCW 5.68.010(5); see also Section IV.A (Statutory and case law definitions) above.

A photographer is covered by the Reporters’ Privilege statute, W.Va. Code § 57-3-10 and is entitled to the protections of the privilege in the confidential source context.  In regard to news gathering materials unrelated to a confidential source, the Hudok court cited to the Von Bulow case for its elaboration on the general criteria used to determine whether one is a member of the class entitled to claim the reporter's privilege. See “Who is covered” above. There is no law or statute that formally defines who qualifies as a "photojournalist." However, from the Charleston Mail Ass'n v. Ranson, 488 S.E.2d 5, case it is clear that news photographers and their photographs are covered by the privilege.

There is no authority in Wisconsin that defines "photo journalist."

Not applicable.