Photo Attorney - Serving the photographer's legal needs

• Check out attorney/photographer Samuel Lewis‘ important article on “Get It In Writing” in this month’s Digital Photo Pro.  To compare, see what happened when deals were being made for the “Precious” movie, as explained by the Property Intangible blog.
• The Consumerist reports Walmart would not print some photos of a dead relative for a funeral.  This likely is due to concerns over copyright infringement, since copyright owners and groups such as the PPA have filed suits and made claims against retailers.
• Wired.com explains how copyright owners’ termination rights may disrupt music and publishing industries.  Check my June 15, 2006, blog for more info.
• Discarted.com asks readers to voice their concerns about the sheriffs who detained a photographer for taking photos in the Los Angeles Metro System.  The incident was recorded and is astonishing.
• Creative Commons recently published the results of “A Study of How the Online Population Understands “’Noncommercial Use.’” The primary objectives of the study were two-fold:
  

  to survey variations in the general online population’s understanding of the terms “commercial use” and “noncommercial use,” when used in the context of the wide variety of copyrighted works and content made available on the Internet; and

  to provide information and analysis that would be useful to Creative Commons and to others in understanding the points of connection and potential disconnection between creators and users of works licensed under Creative Commons noncommercial, or “NC,” licenses or other public copyright licenses prohibiting commercial use.

  Of note, the study found that “both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial.”

• Examiner.com is sponsoring a photo contest with appropriate terms [hooray!]:
  

  Although entrants will retain ownership of copyright in the photographs submitted, each entry form and the copies of photographs submitted therewith (collectively the “Submissions”), become the property of CDG, and will not be acknowledged or returned. Each entrant hereby grants to CDG, its parent, subsidiaries and related entities, and each of their successors and assigns, the perpetual, irrevocable, worldwide and fully-transferable right (but not obligation) and license, without any notification to or approval of entrant, to reproduce, distribute, modify, display, make derivative works of, and otherwise use entrant’s Submissions (or any part thereof) in any manner or media whether now or hereafter existing for promotional purposes in connection with the Contest, including reference thereto or promotion thereof ,or in connection with the business of CDG or its related entities when referencing the Contest or other contests or promotions or marketing of the foregoing in any manner, without payment or other consideration to or consent of entrant or any third party including without limitation featuring the photographs contained in the Submissions on the Examiner.com and NowPublic.com websites and other media properties. The foregoing license does not include the right to sell or exploit any Submission for commercial purposes other than as expressly set forth herein. CDG shall have no obligation to maintain any of the Submissions, or any information or ideas contained therein, as confidential or proprietary. CDG reserves to right to edit, modify, or abridge any Submissions for any reason prior to use.

• Noli Novak shows how her portrait of Obama for the Wall Street Journal has been used by Jose Maria Cano.
• Here’s another concern about posting photos on Facebook: your friends can use Hotprints.com to create a photo book of your photos.

Thanks to Ryan McGinnis, Howard Kier, Kenneth Salstrom, Walter Rowe, and Dave Trayers for submitting these topics.

Join me for this presentation in Philadelphia, PA on Saturday, December 12, 2009 to learn about the law as it affects photographers.  Here are the details:

Who:               Philadelphia Glamour Photography Workshop Group

What:              A special presentation by Attorney Carolyn E. Wright

Subject:           Intellectual property law, photographic copyright law, and much more!

When:              Saturday, December 12^th, 2009, 9:00am – 1:00pm

Where:             Widener University, Room A of the University Center building

• Address: One University Place, Chester, PA, 19013
• Conveniently located right off of I95
• Free parking is available
• This is a safe and secure meeting area, with 24 hour security
• A map will be emailed to all RSVP’s prior to the event

Cost:                $100.00 per person

• Please remit payment via Paypal to aheefner (at) gmail.com, along with your name and a payment description in the transaction notes
• If paying by check, please call 770-402-8579 for a mailing address
• All seating must be prepaid
• RSVP’s must be received by December 7th!
• Admission cost is refundable, less a 5% processing fee

Why:               Because you can’t take your creativity for granted!

Contact:          Albert Heefner

PH: 770-402-8579

The Philadelphia Glamour Photography Workshop Group and friends are extremely proud to host Attorney Wright for this special event. Please join us December 12^th, 2009 at 9am, at Widener University for this special one day workshop. The presentation will run approximately four hours, with one hour used for questioning from the audience. Seating is limited in this venue, so please schedule ahead. Workshop details are listed below. Please bring a pen and paper, to ensure you make the most of the event.

As previously reported in my March 20, 2008, blog, courts have disagreed as to whether photographs of copyrighted works are derivative works.  But one of the prior decisions on this issue has been overturned and, as a result, the court has given photographers some good law.

To compare, the court in Latimer v. Roaring Toyz, Inc., 2008 WL 697346 (M.D. Fl.) held that Latimer’s photographs of motorcycles with customized art work on them were not unauthorized derivative works.  See my March 16, 2008, blog for more information. Therefore, the court ruled that Latimer could proceed with copyright infringement claims for use of his photos of the motorcycles without his alleged permission.  At about the same time, an Illinois District Court in Schrock v. Learning Curve International, Inc. (”Learning Curve”) ruled that Daniel Schrock had no right to register his photographs of toys because they were unauthorized derivative works of the copyrights in the toys. Schrock had been hired to photograph Thomas the Tank Engine toys for use on product boxes.  Alleging that Learning Curve and others had used the photos beyond the license terms, Schrock sued for copyright infringement. But the Court dismissed his case when it found that “without approval from the owner of the underlying [copyrighted] work, approval that was totally absent here, Schrock could not obtain a copyright over his derivative works.”

Fortunately, Schrock appealed and the U.S. Court of Appeals for the 7th Circuit agreed with him.  The Court’s Order gives all of the details, but several statements by the Court are worth repeating:

- Whether photographs of a copyrighted work are derivative works is the subject of deep disagreement among courts and commentators alike.

- We need not resolve the issue definitively here. The classification of Schrock’s photos as derivative works does not affect the applicable legal standard for determining copyrightability, although as we have noted, it does determine the scope of copyright protection.

- Our review of Schrock’s photographs convinces us that they do not fall into the narrow category of photographs that can be classified as “slavish copies,” lacking any independently created expression. To be sure, the photographs are accurate depictions of the three dimensional “Thomas & Friends” toys, but Schrock’s artistic and technical choices combine to create a two dimensional image that is subtly but nonetheless sufficiently his own.

- We assume for purposes of this decision that the district court correctly classified Schrock’s photographs as derivative works. It does not follow, however, that Schrock needed authorization from Learning Curve to copyright [register] the photos. As long as he was authorized to make the photos (he was), he owned the copyright in the photos to the extent of their incremental original expression.

- To be copyrightable, a derivative work must not be infringing. See 17 U.S.C. § 103(a). . . . This means the author of a derivative work must have permission to make the work from the owner of the copyright in the underlying work.

- . . . copyright in a derivative work arises by operation of law—not through authority from the owner of the copyright in the underlying work—although the parties may alter this default rule by agreement.

- Schrock created the photos with permission and therefore owned the copyright to the photos provided they satisfied the other requirements for copyright and the parties did not contract around the default rule.

The Court of Appeals remanded the case so that the lower court could determine whether Schrock’s and Learning Curve’s contract dictated that Schrock could not register/copyright the photos.  While the issue of whether a photograph of a copyrighted work is a derivative work is not resolved, the 7th Circuit has done a lot to support photographer’s rights with this opinion.

Thanks to Thomas D. Paulius for submitting this topic.

1. While reportedly popular last year, the ElfYourself.com program takes an overly-broad license beyond that needed to perform its services:

. . . you hereby grant to Operators [OfficeMax and JibJab] a worldwide, royalty-free, non-exclusive license to do the following things in perpetuity: . . . to display, copy, reproduce, create derivative works of, edit, alter, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, promote, distribute through any means (including electronic, analog and digital), and publish and/or otherwise exploit, in digital or physical form, any or all of the User Materials [that includes your copyrights and likenesses] . . . by any and all means in all media now known or hereinafter created, anywhere in the world, and for any purpose . . . . .
You acknowledge and agree that all right, title and interest (including, without limitation, copyright, trademark and other intellectual property rights) in and to any and all content, elements and materials created by or for Operators incorporating all or any portion of the User Materials will be exclusively owned and controlled, as between you and Operators, by Operators.

2. The terms and conditions that you agree to when submitting content for The Daily Show is no laughing matter:

In connection with all User Content you submit using the User Content Submission Features, you grant to Comedy Central, the Parent Companies and the Affiliates, the unqualified, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Content on the Site and any other channels, services, and other distribution platforms, whether currently existing or existing or developed in the future, of Comedy Central, the Parent Companies and the Affiliates (collectively, the “Platforms”), for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to Comedy Central, the Parent Companies and Affiliates , in our sole discretion. [The remainder of the license continues with additional rights grabs.]

3. Scott Doctor reports on the Model Mayhem Terms and Conditions dispute.

4. On a related note, Pilfered Magazine’s content is “visuals pilfered from the web to share with one another.”  Note that acknowledgement of the creator of a copyrighted work does not relieve potential legal liability for infringement.

Thanks to Paul Velgos, Rex Lisman, and David Sanger for submitting these topics.

As reported by Daryl Lang over at PDN Pulse, Toyoto’s advertising company, Saatchi & Saatchi LA, set up a campaign that used without permissoin a bunch of photos that were posted on Flickr.  Several of these photos were individually protected on Flickr with copyright notices and reserved rights.  Toyota has since stated that “We’re currently pulling the photos and will be in contact with each photography [sic] who was represented.”

Some companies may be grabbing your Flickr photos through Flickr’s API. An API stands for “application programming interface” and is used to allow other software programs to interact with it.  (It’s not known whether Toyota used Flickr’s API in the incident referenced here.)  The Flickr API is available for non-commercial use by outside developers. Commercial use is possible by prior arrangement.

But a company’s use of Flickr’s API is not an excuse to use Flickr photos that have restrictions. Specifically, Flickr’s API’s terms instruct any user of Flickr’s API software that its use is based on terms and conditions, including instructions that:

a.            You shall:

. . .

ii.             Comply with any requirements or restrictions imposed on usage of the photos by their respective owners. Remember, Flickr doesn’t own the images – Flickr users do. Although the Flickr APIs can be used to provide you with access to Flickr user photos, neither Flickr’s provision of the Flickr APIs to you nor your use of the Flickr APIs override the photo owners’ requirements and restrictions, which may include “all rights reserved” notices (attached to each photo by default when uploaded to Flickr), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Flickr photos in compliance with the photo owners’ requirements or restrictions. If you use Flickr photos for a commercial purpose, the photos must be marked with a Creative Commons license that allows for such use, unless otherwise agreed upon between you and the owner. You can read more about this here: www.creativecommons.org or www.flickr.com/creativecommons.

iii.            Comply with any other terms and conditions a user has attached to his or her photo. . . .

Therefore, to further protect your Flickr photos, you may want to opt out of Flickr’s API.  While a photographer has the option of opting out of the API, it does not alter the burden on the API user to follow the photo owner’s restrictions and requirements.

If Toyota or another company grabs your photos through Flickr’s API, then the photographers whose photos are used without permission may have a cause of action through the DMCA in addition to copyright infringement (H.T. to Jeff Sedlik who shared this idea with the ASMP ProAdvice Yahoo Group).  Specifically, 17 USC 1201 provides that: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  The Copyright statute explains that, to “‘circumvent a technological measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” There’s not a lot of law on the DMCA, but this would be an argumentThe statutory damages for violation Section 1201 range from $200 to $2,500 per act of circumvention. Further, if an infringer removes your watermark or other copyright management information from your photo to hide the infringement, you are eligible for additional DMCA damages under Section 1202.  The statutory damages for violating that Section range from $2,500 to $25,000.  Both provide for attorneys’ fees, which will make it more likely for an attorney to help you.  Actual damages are possible for violations of the DMCA and for copyright infringement but can be difficult to prove.  Fortunately, registration of your photo prior to the infringement is not required for the DMCA to apply.  Nevertheless, events like this confirm that it’s important to register your images with the US Copyright Office.

Read more about your options when you’re infringed in my July 3, 2007, blog.  Additional information about what to do when you’ve been infringed is available in my May 29, 2009, blog. Whatever you do, do what you can to protect your work!

Thanks to Chris Nabholz and Joseph J. Beecher for submitting this topic.

The Tuscaloosa News reports that Daniel Moore’s fight against the University of Alabama for his use of trademarks in his paintings of the University’s football scenes does not infringe the University’s rights.  Check my January 6, 2006, blog for the background on Moore’s fight since March 2005.  The court determined that:

“[Moore's] depiction of the uniforms in the paintings is incidental to the purpose and expression of the paintings; that is, to artistically depict and preserve notable football plays in the history of University of Alabama football.”

While this is great news for Moore and for artists, it doesn’t mean that photographers may use trademarks freely. The judge added in his opinion that there is a “total distinction between fine artist creations’ and cards, T-shirts, cups, mugs, posters, mini prints, calendars and other items.” He added that “This court’s opinion approves only paintings and prints treated as art without the use of symbols, logos, etc. of the University of Alabama depicted thereon.“  The court’s Order and Exhibits provide more information.

The University of Alabama may appeal this order.  Nevertheless, Daniel Moore and his attorneys are to be congratulated for their work, dedication, and success.

Thanks to Steve Sasser for submitting this update.

Join me for this presentation in Philadelphia, PA on Saturday, December 12, 2009 to learn about the law as it affects photographers.  Here are the details:

Who:               Philadelphia Glamour Photography Workshop Group

What:              A special presentation by Attorney Carolyn E. Wright

Subject:           Intellectual property law, photographic copyright law, and much more!

When:              Saturday, December 12^th, 2009, 9:00am – 1:00pm

Where:             Widener University, Room A of the University Center building

• Address: One University Place, Chester, PA, 19013
• Conveniently located right off of I95
• Free parking is available
• This is a safe and secure meeting area, with 24 hour security
• A map will be emailed to all RSVP’s prior to the event

Cost:                $100.00 per person

• Please remit payment via Paypal to aheefner (at) gmail.com, along with your name and a payment description in the transaction notes
• If paying by check, please call 770-402-8579 for a mailing address
• All seating must be prepaid
• RSVP’s must be received by December 7th!
• Admission cost is refundable, less a 5% processing fee

Why:               Because you can’t take your creativity for granted!

Contact:          Albert Heefner

PH: 770-402-8579

The Philadelphia Glamour Photography Workshop Group and friends are extremely proud to host Attorney Wright for this special event. Please join us December 12^th, 2009 at 9am, at Widener University for this special one day workshop. The presentation will run approximately four hours, with one hour used for questioning from the audience. Seating is limited in this venue, so please schedule ahead. Workshop details are listed below. Please bring a pen and paper, to ensure you make the most of the event.

Check out the article by attorney Tim Wu on Slate.com who does a great job of demystifying fair use.

The UK’s Intellectual Property Office (”IPO”) along with the UK’s Department for Business Innovation and Skills (”BIS”) have published a report entitled, “© the way ahead: A Strategy for Copyright in the Digital Age.”  Based on the findings, the Government’s reported intentions are:

• for authors of copyright works; to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights;

• for rights holders; to help secure a viable future by encouraging the development of new business models, modernising the licensing process and maintaining support for education about and enforcement of rights;

• for consumers; to allow them to benefit from the digital age by seeking to legitimise noncommercial use of legitimately-purchased copyright works and improving access to ‘orphan works’ such as out-of-print books;

• for educators and researchers; to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age; and

• for businesses and other users; to work towards a simpler copyright system by, improving the copyright licensing process and encouraging the development of new business models.

This means:

• UK action to improve access to orphan works, enable extended collective licensing, encourage the development of model contracts and clauses, and tackle P2P file-sharing; and

• A willingness on the Government’s part to consider European action that provides commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.

Based on these findings, the Government’s intentions

are:

• for authors of copyright works; to support fair

treatment through new model contracts and

clauses and fair returns for use of their work by

improving education about and enforcement of

rights;

• for rights holders; to help secure a viable

future by encouraging the development of new

business models, modernising the licensing

process and maintaining support for education

about and enforcement of rights;

More detail is available in the report. The balance between rights holders and users is getting precarious.

Librarian, Jessamyn West, reports on her recent experience when visiting the Des Moines, Iowa, Public Library.  After snapping some photos of the beautiful building, a library worker asked her, “Are you taking pictures?” and told her that she is not allowed to take photos in the library without permission from the marketing staff.  Ms. West subsequently had a email exchange with the Library’s Marketing Director, which is posted in her blog entry.  In sum, the Library’s photography purported policy (it does not appear to be posted on the website or in the Library) is:  ”Permission to photograph the library reading rooms and other public areas of the building may be granted by the library director or her designee. Photographs and videos may not include library signage or the library logo, and photographing may not disrupt library customers’ use of the library.”

So what’s the law on this?  First, while some buildings are protected by copyright, the US Copyright Act provides an exception for photography of architectural works:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

See 17 USC 120.  Therefore, the law allows you to take photos of  the library because it is located in and is ordinarily visible from a public place.  The architect would not have grounds to keep you from photographing the work for any purposes, including commercial purposes.

Second, when taking photos while inside the library,  you are subject to trespassing issues.  Specifically, your presence on another’s property is pursuant to a “license” to be on the premises.  For example, when you invite someone to your home for dinner, that person does not have a “license” or permission to drive your car or stay overnight but would have the specific or implied consent to sit in your living room and at the dining room table.  At any point, you may revoke the license and ask your guest to leave the premises.

For the library issue, the library management would have the ability to force a person to leave, such as a vagrant who comes in to sleep in a warm, dry place.  Likewise, someone who is in the library to take photos may be subject to eviction since the photographer is not there to use the ordinary library resources.  The ultimate question is whether the library has given specific or implied consent for persons to take photographs there.  Certainly, if the library has posted “no photography” signs, then consent has not been given.  If the library is silent about your photography, especially when the management doesn’t stop your activities, then the consent is at least implied.  So shoot away.

Finally, the use of the photographs of the library is limited if people are in your photos.  The people there likely would not have expectation of privacy, so you may take their photograph.  But if you use the photograph of a person in a commercial manner, you will need the person’s consent that is usually documented by a model release. See my September 14, 2005, blog for more information.

Thanks to Peter Hirtle for submitting this topic.