Photo Attorney

May 26, 2005

Don't Sit On Your Copyright Infringement Claim!

When someone infringes your copyright, you have a limited time to make your claim. This is based on a legal principle called "statute of limitations." Statutes of limitation, in general, are laws that prescribe the time limit to file lawsuits. The deadlines vary by the type of claim and maybe by the state where you live. The purpose of them is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain time.

Because copyrights are governed by federal law, there is only one statute of limitations for claims related to them. Copyright infringement claims have a three-year statute of limitations from the "last act" of the infringement. What constitutes the last act can vary. For example, if your image is published in a newspaper without your permission, you have three years from the date that the newspaper was distributed to file your claim in court. But if the infringement is continuing, such as when someone is using your image on the web without your consent, then the time to calculate the statute has not started to run. Instead, it would start when your photo is removed from the website. Determining when a statute has started to run can get a bit tricky. It sometimes starts when you have "constructive" notice of the infringement, even if you don't have actual knowledge of it.

If someone uses your photo without your permission, you may seek legal remedy from that person within three years of the last act of infringement. So don't sit on your claim once you have it. Note, however, to pursue any copyright infringement claims in court, you must first register your copyright with the U.S. Copyright Office.

Take my advice; get professional help.

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May 18, 2005

Protecting and Prosecuting Your Copyrights

When your image is used without your permission, your copyright is infringed. You have several options at this point.

You always have the option of doing nothing. You may not care that the non-profit wolf society is using one of your wolf images. You may only want the society to give you proper credit. If so, write the society a letter officially giving it the right to use the image (be sure to designate the parameters of that use), but insist that you get a photo credit with a copyright notice. Also ask the society to add your website name. You may get additional work from the society or others.

Your most aggressive option is to pursue your legal remedies by filing suit. Remember, your copyright must have been registered with the Copyright Office. To file suit, get an attorney to help you because the legal procedures are complicated.

Usually, your most profitable and easiest road is the middle one. Since you have your proof of registration, you need only to contact the infringer to put him on notice. If the infringer is a business-savvy person, he will know that he's in trouble. If he doesn't understand the trouble he's in, he will as soon as he talks with his attorney. He will want to avoid the legal fees that will be imposed both by his and your attorney. So make your demand for statutory damages by letter and you will get your just rewards much more quickly.

The weight of your demand letter is dramatically increased if it comes from an attorney. The infringer will recognize that you mean business and are prepared to go forward with suit if the infringer doesn't respond appropriately.

Protecting and prosecuting your copyrights goes hand in hand. To best protect your rights, what you do after your copyright is infringed is as important as what you do beforehand.

Take my advice; get professional help.

May 11, 2005

Copyrights Here, There and Everywhere

You take a picture of a city street. Look closely and you'll see copyrighted material everywhere in your photo. The obvious copyrights are on the billboard, the newspaper stand and products in the store window. The less obvious copyrights are in the sculptural ornamentation of the lamppost, the patterned fabric of a woman's skirt and the toy the kid is holding. You will never be able to track down all of these copyright owners to get their permission to use the photo. Are you out of luck if you want to use it? Maybe not.

While copyright law can be restrictive on photography, it is not irrational. Copyright law includes the doctrine of "fair use" that allows unauthorized use of copyrights in certain circumstances. The courts recognize that free expression and avoiding law suits over minor issues are more important than protecting intellectual property rights.

The doctrine of fair use means that copying will not infringe a copyright when it is "for purposes such as criticism, comment, news reporting, teaching, scholarship or research." Four factors are considered to determine whether the use qualifies under the doctrine:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used; and
The effect of the use upon the potential market for or value of the copyrighted work.

So if the copyrighted material that appears in your photo is covered by these four categories, you do not have to be concerned with getting permission to use it. On the other hand, it's a judgment call. Would a court agree with your position? It may be costly to find out. The next best alternative is to get a copyright lawyer's advice. The lawyer can give you an opinion based on research and experience. But the safest and sure way to use a copyrighted work in a photograph is to get permission in writing from the copyright owner.

Take my advice; get professional help.

May 8, 2005

Practical vs. Legal

Depending on the circumstance, a model or property release may not be legally necessary. But getting one never hurts and it may help. It may make some people think that they can't sue you (they can, even if their cause of action is bogus). If they do sue you, having a release may shorten the litigation and it could help you win. Even when you win, though, your defense fees can be costly.

In those situations when a release is not required, other legal issues may be presented when photographing a person, an animal or other property. These include trespassing, trademark, false light or invasion of privacy. All of this can get confusing. That's also why it's dangerous to take anecdotal advice.

For example, if one person has a fashion shoot in a national park and needs a permit, it does not mean that all professional photographers who shoot in a national park need a permit. While some stock agencies may require a property release for an animal photo, it does not mean that it's legally required. It means that they are being cautious in this litigious society.

I recently photographed some huskies at a public park. I wasn't trespassing on public property, the dogs are not trademarked and I did not misrepresent them (also known as "false light") in my photos. Further, since animals don't have privacy rights like humans do, I did not need to get a model or property release from their owner. But I got one anyway. I asked the owner in writing for permission to use the photos. I did that that only to keep the owner from getting upset and to avoid any hassle with a stock or advertising agency.

What is often practical is not always legally required. To figure out the differences and to make the best decisions about what to do, talk to an attorney to discuss your particular situations.

Take my advice; get professional help.