Drone Photography and the Law

Edgewood Aerial - Copyright Carolyn E. Wright

Photographers and videographers are discovering an exciting way to shoot via drones. But be sure that you understand the laws related to this new area before taking off.  First, check Photo Attorney’s article on flying drones at Lynda.com.  Then see Forbes’ report on media use of photos taken from drones.

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Everything You Need to Know About eCO Registration* (*but were afraid to ask)

Leslie BurnsJoin Photo Attorney®, Leslie Burns, for the APA | SD presentation: “Everything You Need to Know About eCO Registration* (*but were afraid to ask)” on Thursday, May 14th, 2015, from 7:00 – 8:30 pm (doors open at 6:30 pm) at the Riverdale Studios, 6314 Riverdale Street, San Diego, CA 92120. Leslie will walk you, step-by-step, through the process to register your copyrights using the eCO system. Learn more and register on the APA | SD website.

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U.S. Copyright Office Publishes Index of Fair Use Decisions in Support of U.S. Intellectual Property Enforcement Coordinator

Calla Lilly - Copyright Carolyn E. Wright

Register of Copyrights Maria A. Pallante today announced the launch of the U.S. Copyright Office’s Fair Use Index, which is designed to provide the public with searchable summaries of major fair use decisions. The Index was undertaken in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement prepared by the U.S. Intellectual Property Enforcement Coordinator within the Executive Office of the President.

Although not a substitute for legal advice, the Index is searchable by court and subject matter and provides a helpful starting point for those wishing to better understand how the federal courts have applied the fair use doctrine to particular categories of works or types of use, for example, music, internet/digitization, or parody.

“The doctrine of fair use has been an essential aspect of our copyright law for nearly 175 years,” said Pallante, “but it has too often been a mystery to good-faith users who seek more detail about its application. It has been a pleasure coordinating this practical and important resource with the U.S. Intellectual Property Coordinator’s office.”

“The doctrine of fair use is a vital aspect of U.S. copyright law,” said Danny Marti, the U.S. Intellectual Property Enforcement Coordinator at the White House, “and it is applied regularly in our daily life. I commend Register Pallante and the Copyright Office for producing this important resource—a resource that not only helps to make the doctrine more accessible, but also serves to re-emphasize the significance of this right as part of our culture. Indeed, it is the combination of a strong copyright system with a right of fair use that encourages creativity, promotes innovation and respects our freedom of speech and expression.”

The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, Internet/digitization, parody).

The Fair Use Index may be accessed on the Copyright Office’s website at http://copyright.gov/fair-use/index.html or via the U.S. Intellectual Property Enforcement Coordinator’s website at http://www.whitehouse.gov/omb/intellectualproperty.

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Register of Copyrights to Testify at April 29 House Judiciary Committee Hearing on Copyright Review

Register of Copyrights Maria A. Pallante will testify before the House Judiciary Committee onWednesday, April 29, 2015, at 10:00 a.m. (ET), in a hearing entitled “The Register’s Perspective on Copyright Review.” The Register, who was the first witness in the congressional review process in 2013, returns as the 100th witness and will share the recommendations of the Copyright Office on possible amendments to the law and discuss recent policy initiatives. She will also respond to questions regarding modernization of the Copyright Office.

The Register’s testimony will be webcast on the House Judiciary Committee’s website athttp://judiciary.house.gov/index.cfm/2015/4/hearing-the-register-s-perspective-on-copyright-review.

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Copyright Office Issues a Notice of Inquiry on Photographs, Graphic Artworks, and Illustrations

Black bird - Copyright Carolyn E Wright

The U.S. Copyright Office has published a Federal Register notice requesting written comments on how certain visual works, particularly photographs, graphic artworks, and illustrations, are monetized, enforced, and registered under the Copyright Act. The Office is specifically interested in the current marketplace for these visual works, as well as observations regarding the real or potential obstacles that these authors and, as applicable, their licensees or other representatives face when navigating the digital landscape.

Photographers, graphic artists, and illustrators have expressed a growing list of concerns in recent years when speaking to both the Copyright Office and Members of Congress. This Notice of Inquiry thus builds upon our longstanding policy interest in these types of visual works, including the Copyright Office’s studies in a number of areas such as small claims, the making available right, resale royalties, registration, recordation, and the interoperability of records. As always, the Office is interested in the perspectives of copyright owners as well as users of these creative works. This is a general inquiry that will likely lead to additional specific inquiries.

The Notice of Inquiry is available at http://copyright.gov/policy/visualworks/. Written comments are due on or before July 23, 2015, and reply comments are due on or before August 24, 2015.

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Musician’s Photo Release is a Rights Grab

Trainor Release

Meghan Trainor, the popular singer of “All About That Bass,” and her management company, Atom Factory Music, LLC, reportedly are making photographers and videographers sign a Release to get a photo credential at Trainor’s concerts.

The Release restricts your taking photos to the first three songs and video recording to the first 90 seconds of the first three songs of the performance. “Photographs” and “Videos” are defined as all of your shots or video taken during that time.

Unfortunately, by signing the Release, you exclusively give Trainor the copyrights to your Photographs and Videos and are not entitled to any payments, regardless of how Trainor may later use your Photographs or Videos. At least Trainor and Atom Factory grant you a license to use the Photographs and Videos for the publication or network that initially requested your photo credential. You must get Atom Factory’s approval for any other uses of the Photographs or Videos.

The lesson? Read before you sign. If you sign, abide by the terms of the agreement. If you don’t agree to the terms, then don’t sign. Walk away and spend your time and talents on better things.

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Federal Lands Photography Rules

Sequoia Layers - Copyright Carolyn E. Wright

When photographing on federal lands, it’s helpful to know the rules and carry a copy of them with you in case you are challenged. Here are links to them for your reference:

National Park Service

Permits and rules are dictated by each park, such as:

http://www.nps.gov/grsa/planyourvisit/upload/commercial_photography_guidelines.pdf

http://www.nps.gov/goga/planyourvisit/specialparkuses.htm

You can find a list of them here:

http://www.nps.gov/search/?affiliate=nps&query=photography%20permits

Wilderness Areas

http://www.fs.usda.gov/detail/r5/passes-permits/event-commercial/?cid=STELPRDB5349053

http://www.fs.fed.us/spf/tribalrelations/documents/nfsconsultation/QAs_CommercialFilmingWilderness.pdf

National Forest System

http://www.fs.fed.us/specialuses/documents/2709.11_40.pdf

BLM Land

http://www.blm.gov/wo/st/en/prog/more/lands/filming.html

Each local BLM office authorizes filming on public lands within its jurisdiction. Each location is unique and is subject to different conditions.

http://www.blm.gov/wo/st/en/info/directory.2.html

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Senate Bill Seeks to Require Permitting for Filming on Federal Lands

U.S. Senator Lisa Murkowski from Alaska introduced in the U.S. Senate on February 5 a bill entitled the “Bipartisan Sportsmen’s Act of 2015,” which, if passed, will require a $200 per year permit for any crews of five people or fewer conducting commercial filming on public lands and waterways. In addition to the permit, the film crew must notify the applicable management agency for the federal land at least 48 hours before entering the area. The head of that agency may deny access to a film crew if, in addition to other reasons, “the filming includes the use of models or props that are not part of the natural or cultural resources or administrative facilities of the Federal land.”

Fortunately, this permit requirement does not appear to extend to still photography, as the bill defines “film crew” as those “who are associated with the production of a film” and never mentions “cameras” or “photographs.” Unfortunately, the bill does not specify what comprises “commercial filming activities (but includes “similar projects” – whatever that means), “models,” or “props.” Therefore, does a photographer who records video on a DSLR need a permit for recording a harem of elk in the Rocky Mountain National Park if he later intends to license it? Does a hobbyist videographer filming in Lake Clark National Park, who catches nice footage of coastal brown bears that is subsequently licensed, need a permit after the fact? The definitions of models and props have long been subject to interpretation as explained by Jeff Conrad in his earlier guest post. Without the legislature clarifying these parameters, photographers and videographers are at risk if they don’t get the permit, even if not technically needed, as rangers in the field often have their own, and sometimes incorrect, interpretation of the rules.

When a similar issue arose for the September 4, 2014, proposal to revise the Forest Service Handbook, the U.S. Forest Service Chief Thomas Tidwell issued a directive on commercial filming and photography permits that explained:

I also want to emphasize that commercial photography only requires a permit if the photography takes place at locations where members of the public are not allowed, or uses models, sets, or props.

Commercial film and photography permit fees should be primarily viewed as land-use fees. If the activity presents no more impact on the land than that of the general public, then it shall be exempt from permit requirements.

which appears to be a fair position to all. The Outdoor Writers Association of America is understandably troubled by this new bill, especially because it does not offer an exemption for journalists. The OWAA has prepared a position paper on the matter. It has requested that concerned citizens inform their representatives and senators about their views on Section 106 of the Sportsmen’s Act.

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Comparison of U.S. and Australia Copyright Law

While often similar, copyright law in the United States is a bit different than that in other countries. As a follow up to the blog entry on the “Comparison of U.S. and Canada Copyright Law,” Peter Knight, a partner and attorney with the firm of Banki Haddock Fiora and author of Copyright – The Laws of Australiahelped to prepare the Australian part of chart below:

Comparison between U.S. and Australia Copyright Law - Copyright Carolyn E. Wright and Peter Knight

 

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Jury Awards Photographer $200K for Infringements

New York awarded photographer, Lyle Owerko, $200K in less than an hour of deliberation for infringing two photographs that the defendants copied from the Internet, not realizing that they were protected by copyright. The jury found the infringements to be willful, according to the jury’s verdict form.

More background on the case here:  http://biedermanblog.com/music/boom-artist-boxes-record-label-for-infringment/

Congrats, Lyle!

 

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