Photo Attorney - Serving the photographer's legal needs

The Copyright Office now offers a toll-free line in an ongoing effort to improve copyright public services. Callers can now dial 1-877-476-0778 to ask questions about copyright registration, including use of the electronic Copyright Office (eCO), the Office’s online registration system. When patrons call the toll-free line, they will be prompted to select the Copyright Public Information Office (PIO) or the Copyright Technology Office (CTO) help desk, depending on the nature of their inquiry. PIO information specialists address copyright and registration-related inquiries; CTO help desk staff assist eCO users. Recorded information is also available.

Check these important posts from Gunar:

• Google in the hot seat for stripping metadata in image search results
• What should Google do about media metadata?

Great quote:

There will always be people who steal.  That is not the problem to solve.  The challenge is to raise the overall awareness of the ownership of the media, and educate the consumer on the right ways to re-use the media.

Check Peter Marshall’s excellent post on this issue at >Re: PHOTO.

Thanks to Cindy Lewis for submitting this topic.

Dave Warner over at http://www.lensflare35.com/ interviewed me last week to talk about legal issues and my photography.  We had a great time, including making a new tune for the “D-M-C-A.”  The podcast is available on Dave’s site or via subscription in iTunes.

Issue:  HSBC Bank USA used two photographs of house in a brochure (viewable on Scribd) distributed with the San Francisco Chronicle to advertise mortgages.  The owner of the home sued under seven theories of law after others asked him about his financial condition and whether his home was for sale.

The result:  No liability under any of the theories.  The Property, intangible blog has the full story.

A similar result occurred with the Benjamin Ham lawsuit reported on my January 25, 2009 blog.

During a recent photo safari in Botswana, our group was privileged to view and photograph a lioness’ efforts to find her cubs.  The dramatic event tore at our hearts.

Grant Atkinson, our wonderful guide, great photographer, and fantastic photography teacher, reported the story on his blog with Africa Geographic.  With my “Sigmonster” and high position in the Land Rover, I was able to reach to the other side to record the touching reunion of the mother and her cubs.   Thanks to Grant for including my photo (shown here) with his article and for his tremendous leadership during the safari.

Thanks to Mike Johnston over at The Online Photographer for including the “Photographer’s Legal Guide” on his list of “The Best Photography How-To Books!“

Order your copy of the ”Photographer’s Legal Guide” from the Products page (for the e-book version or for an autographed softback copy) or from Amazon for a softback copy or for a Kindle version.

Q. If I hand my camera to another person to shoot a few frames, who owns the copyright for the images?
A. Copyright protection subsists from the time the work is created in fixed form.  The copyright in the work of authorship immediately becomes the property of the author who created the work. Unless the photo is a work made for hire, then the other person – not you – owns the copyright.  However, depending on the circumstances, you likely have an implied license to use the photograph for personal uses.  For example, if you ask someone to take a shot of your family on vacation, you could do things such as print the photo for display in your home, post the photo on your personal Facebook page, or share the photo via email with friends or family.  But you probably wouldn’t have the right to enter the photo into a contest or license it for commercial  purposes.

Bonus round:
Q. Would the outcome be any different if the person is a minor?
A. Minors may own copyrights and the Copyright Office issues registrations to minors.  State laws may regulate the business dealings involving copyrights owned by minors, such as licensing.  But, in this situation, an implied license also likely would be in effect.  For other types of licenses from minors, be sure to get the photographer’s parent or guardian to authorize the license since minors may later void the license or contract.

Double bonus speed round:
Q. I put my camera on a tripod, set the focus and exposure manually, hand the remote control to another person who fires the shutter only when I tell him to. Who owns the copyright?
A. 17 USC 201 provides that the source of copyright ownership is the author of the work and that, in the case of a “joint work,” the coauthors of the work are likewise coowners of the copyright.  Under 17 USC 101, a work is “joint” if the authors collaborated with each other or when each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as “inseparable or interdependent parts of a unitary whole.”

In general, when the shutter on a camera is tripped to make a photo, the photographer who pressed the button owns the copyright. In the situation here, did you and the person who fired the shutter have the knowledge and intention that each of your contributions would be merged as an inseparable or interdependent parts of a unitary whole (i.e., the photo)?  Did you collaborate with the other to make the shot?  Did the person who tripped the shutter contribute copyrightable expression?  Maybe not here.  But do you want to have to litigate this?  Read more about this in my June 17, 2005 blog.

Courts have held that, in the absence of a written agreement to the contrary, joint authors will be deemed as tenants in common. This means that each owns an undivided interest in the entire work and each has an independent right to use or license the entire work. So to avoid any possible conflict, be sure that you have an agreement as to who owns the copyright to the photo.

Thanks to Ernie Fehler for submitting these topics.

Join me at the Telluride Photo Festival! I’ll be speaking on the Law for Photographers on Sept 23-24 at 9-10:30 am each day.   Check the Seminar page for more information.

Trademarks or servicemarks allow people to identify the source of goods or services, not the products or services themselves. When people see your trademark, they will know where the product came from or who is providing the service. Trademarks can be names, symbols, packaging, the shape of a product, the colors of a product, the sounds, or scents associated with the product, or any combination of these. If a customer can identify the source of a product or service based on the trademark, then you have developed “secondary meaning” and have a strong trademark. To promote, protect, and keep your business from being confused with another, you should consider establishing a trademark for your business.

Attorney Samuel Lewis has a great two-part series in and on Digital Photo Pro Magazine on how you can protect your photography business’ goodwill by use and registration of your trademarks/servicemarks.  The first part appears here and the second here.

Note that the article did not include the important rule that you may and should use the “TM” symbol immediately with use of your trademark, including while you are waiting for it to go through the registration process.  But you may only use the ® symbol after federally registering the trademark.  Check my Sept 2007 blog entry on how to put your copyright or trademark symbols on your work.  It’s all part of protecting your business.