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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Providing Photos to a Client = Published?

Lynx in Rock - Copyright Carolyn E. Wright

Registering your copyrights accurately is vital, as infringers often will challenge your registration to avoid paying statutory damages. Part of registering copyrights correctly is determining whether they are published or unpublished. This blog has many posts on what constitutes publication, such as: Are Photographs Posted on the Internet Published? and Copyright Registration Issues. Also check AMSP’s article on “Defining Published and Unpublished?

Many photographers provide images for their clients to review and then possibly display or distribute one or more of those photos to the public. So, have you published all of your photographs at the moment you transmit them to your client? Probably so.

The Copyright Act defines “publication” as:

the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

17 U.S.C. § 101.

The Copyright Office further explains in its Circular:

A further discussion of the definition of “publication” can be found in the legislative history of the 1976 Copyright Act. The legislative reports define “to the public” as distribution to persons under no explicit or implicit restrictions with respect to disclosure of the contents. . . . [W]hen copies . . . are offered for sale or lease to a group of wholesalers, broadcasters, or motion picture theaters, publication does take place if the purpose is further distribution, public performance, or public display.

Therefore, if you provide your photographs to a client intending that the client further distribute or display those images, then you have published them even if the client never uses them. Be sure to register them that way.

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Why Are We Surprised When Infringers Lie?

Snowy Owl on Rock - Copyright Carolyn E. Wright

Putting salt in the wound, photographers and other creatives often are even more frustrated when infringers don’t make things right when accused. Such was the case for a Alison Green at www.askamanager.org when she discovered someone copied her reader’s resume cover letter from Alison’s website. Alison explains what happened next, including receiving a barrage of excuses and accusations.

When someone infringes your copyright, the infringer usually offers some excuse to try to avoid liability. Many of these excuses appear compelling on the surface, but they don’t stand up to the law. Check this article on Excuses, Excuses that identifies some of the more popular excuses and what copyright law provides to counter them.

Some of the infringer’s excuses are completely fabricated, causing even more frustration for the copyright owner. But why are we surprised when infringers lie? They stole your work in the first place. Why would they do something right after being caught?

But sometimes infringers do the right thing, as reported by Alan Wexelblat at www.copyfight.corante.com. Even though John Green (no known relation to Alison, but be sure to watch his great video) didn’t mean to steal the quote, he determined how much he owed and made things right in awesome ways, including paying the originator for it.

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Congressional Hearings re Copyright on Thursday, February 26, 2015

On February 26, 2015, the Congress will hold two separate hearings relating to the functions and funding of the U.S. Copyright Office. Both hearings will begin at 1:30 pm and will be streamed through the respective Committee websites.

The full House Judiciary Committee will hear testimony from external witnesses regarding a variety of questions, including current and future statutory responsibilities, Constitutional issues, technology, fees, and appropriations. This hearing is part of the Committee’s commitment to review the copyright law to assess how well it is working in the digital age. The 113th Congress held nearly twenty hearings in 2013 and 2014 under the leadership of the House Subcommittee responsible for intellectual property.

The House Appropriations Committee will hold its annual hearing on the fiscal year 2016 appropriations request of the Library of Congress, which includes the Copyright Office budget. Librarian of Congress James H. Billington will testify. As always, the Register has submitted a written statement to the Committee, which will be posted tomorrow on the Copyright Office website, and will assist the Librarian with Copyright Office questions. Please note that this hearing follows the appropriations hearing on the Architect of the Capitol and the start time may therefore shift.

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Take Action-Remind The 114th Congress That Copyright Is Vital to Creatives

From the Copyright Alliance:

As the new Congress convenes in D.C. and takes up important copyright issues, please sign this letter reminding Congress of the vital role that copyright, free expression, creativity and innovation continue to play in our lives.

“There is no “left” or “right” when it comes to respecting copyright. The creative community stands united in support of a copyright system that has made and continues to make the United States the global leader in the creative arts and the global paradigm for free expression. Our copyright system is not perfect but, like democracy, it is better than the alternatives. It works. We urge Congress to resist attempts to erode the right of creatives to determine when and how they share their works in the global marketplace.”

Read the letter and sign it via the Copyright Alliance Take Action Now Tool today. 

Make your voice heard on this important matter. 

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U.S. Copyright Office Releases Report on Technical Upgrades Project

Jack Stare

The Register of Copyrights has released a report from the Special Projects Team responsible for studying technology issues and business improvements related to the Copyright Office’s services. The report was delivered to the Register by the Copyright Office Chief Information Officer Doug Ament, who chaired the multi-year analysis. The effort was one of 10 areas of focus publicly announced by the Office in Priorities and Special Projects of the United States Copyright Office: 2011-2013.

The Office’s technology infrastructure impacts all of the Office’s key services, and is the single greatest factor in its ability to administer copyright registration, recordation services, and statutory licenses effectively. The report thus provides a number of recommendations that, if adopted, could significantly improve the Office’s operations and interactions with the public.

“I am grateful to the project team members and the stakeholders who responded to their inquiries, said Maria A. Pallante, Register of Copyrights. This report will be of great help as we work with the Congress, the Library and the public to create a twenty-first century Copyright Office.”

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