Photo Attorney

Apr 27, 2005

Better Late Than Never - Register Your Published Photographs

There's no doubt that it's easier to register your photographs before you publish them. But if you didn't get it done then, it's better late than never to register your published images. The good news is that it's more convenient and cheaper than ever to register your photographs after they have been published.

Pursuant to a recent change in copyright law, you now can register a group of published images on one form. The only requirements are that the photos must have been published in the same year, made by the same photographer and have the same copyright claimant. This should fit the profile of most photographers and their work.

Specific instructions on how to prepare your registration forms for published photographs are available from the Picture Archive Council of America at in "The Importance of Copyright Registration"

You no longer have an excuse. Go to the dentist, change the oil in your car, and register your images, both unpublished and published. It's better late than never.

Take my advice; get professional help.

Apr 23, 2005

Know Your Rights and Limitations When You Photograph Property

In general, if property is visible and can be photographed from a public place, you don't need a property release to use the image in any manner. This exclusion to copyright law includes buildings located on the property, but not statues or other items that may have separate copyrights. There also are restrictions on some governmental property for security purposes, such as federal seals and insignia, and military or nuclear installations. But if the statue or copyrighted item has minimal presence in your image, your photo still may fall under the exclusion. Otherwise, you must get permission to use the image for commercial purposes.

Nevertheless, some companies have tried to prevent the use - both commercially and editorially - of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the lone Cypress tree at Pebble Beach, CA, and the "Hollywood" sign. While these attempts have been unsuccessful, they can be expensive to litigate. Is it worth it to you to spend thousands of dollars to test this issue? That's a choice you'll have to make.

On the other hand, photographers should protect their rights, too. Don't be intimidated from photographing what is within your legal rights. Check with an attorney to fully understand and exercise your privileges.

Take my advice; get professional help.

Apr 13, 2005

Know Your Rights and Limitations When You Fly

The Transportation Security Administration's ("TSA") mission is to "protect [ ] the Nation's transportation systems to ensure freedom of movement for people and commerce." The TSA, not the airlines, determines what can pass through the secured area of an airport.

So it's great that the TSA allows photographers an extra bag of "photographic equipment in addition to one (1) carry-on and one (1) personal item through the screening checkpoint. The additional bag must conform to your air carrier's carry-on restrictions for size and weight."

The catch is that your airline, not the TSA, has the right to disallow the third bag. While you can get it through security, you may be forced to check it at the gate. Since many photographers need two bags for photography equipment plus a briefcase for their laptops, you may not want to have to choose which bag is thrown below when the third bag is disallowed.

E-mail messages to Delta, Northwest, Alaska, United and American Airlines asking whether they allow the extra photography bag either were not returned or the responses quoted/referred to baggage guidelines from their websites that allow only two pieces of carry-on luggage. Even if any of the replies had been positive, the rules may be applied differently at the gate.

The safest plan is to go with two carry-on bags, at least for now.

Take my advice; get professional help.

Apr 11, 2005

Rights of Publicity For All

In general, you may photograph people when they are in public. The use of those photographs, however, can be restricted due to certain privacy rights. Privacy rights are recognized in most states, but are different for each one. Since it's tricky to know what you can do, the safest approach to follow is the most restrictive one.

One right of privacy - also known as the right of publicity - is the commercial appropriation of someone's name or likeness. It happens when the name or likeness of someone is used without consent to gain some commercial benefit, such as when a photograph of a person is used in an advertisement without the person's permission. That is why model releases are so important. It is evidence that you have the person's permission to use his image for certain purposes.

So what do you do when you travel to foreign countries to photograph the people there? Do you need a model release? What if the people don't speak English?

Nevada Wier has published thousands of travel photographs from all over the world. Her advice in her book, Adventure Travel Photography, is:

If you plan to use your photographs for publication or stock, I think it is wise to have signed model releases from any people you photograph in a foreign city, no matter what their nationality or what the shooting situation is. (Even though lawsuits aren't currently common in the rest of the world, this might change.) Translate your release forms into the language of the country you'll be traveling and photographing in. In more remote regions it is a bit trickier to get signed model releases, and not always appropriate. People may be suspicious, confused or frightened if they're asked to sign a piece of paper. Use your common sense.

I couldn't have said it better.

Take my advice; get professional help.
Photo Attorney

Apr 6, 2005

Don't Kill The Messenger

The U.S. Supreme Court is considering whether software companies can be liable for their products that enable illegal sharing of music and video files. The case of M.G.M. v. Grokster has the attention of major and diverse players. Over 55 amicus briefs - statements by those who are not directly involved in the case - have been submitted to the Court for consideration. These include the NFL, the NBA, the Christian Coalition, Senators Leahy and Hatch, and two photography groups - the PPA and the ASMP, which specifically note that the "illegal file-sharing poses particularly significant risks for publication photographers and other small copyright owners whose livelihoods depend to a substantial degree upon commercial exploitation of their creative works." Some of the materials can be viewed here:

The issue is not whether file sharing of copyrighted materials is illegal - it is. The issue is whether a manufacturer can sell a device that allows customers to commit copyright infringement. It is based on the legal theory of secondary liability. Computers or the internet likewise could be considered devices that enable someone to steal others' work. But since those items also can be used for legal activity, the benefit of doubt goes in their favor. On the contrary, anyone caught with items that have no legal use - such as burglar's tools that can be used only to break into a house - can be prosecuted without more.

The individuals who use Grokster's service to illegally download music will not get the same benefit of doubt. They commit the infringement and are subject to civil and criminal prosecution. Case closed.

How can we stop the infringement? Even if the Supreme Court outlaws Grokster's software, infringing activities won't stop. We must find other ways to at least minimize it. There are things we can do.

First, we can educate the infringers. Some people don't realize that sharing files of copyrighted work is illegal. The recording industry increased its public awareness program and found a significant rise in the percentage of persons aware that it is illegal to make copyrighted music available online for others to download. When some people know that an activity is illegal, they don't do it. Second, we can develop and use technology and other features that make it difficult for others to steal our work. Some thieves are lazy and won't steal anything that takes effort. Third, we can make it easier for potential infringers to purchase the product they want. The recording industry has learned that consumers will purchase one song when they don't want to buy the entire album. Last, we can sue those who steal the work so that they and others learn that the theft will not be tolerated. Going to jail or paying a fine is a deterrent.

So don't blame the messenger. Change the message. Follow the course of our fellow recording artists and protect your work.

Take my advice; get professional help.
Photo Attorney