Photo Attorney

Jun 29, 2005

Infringement Nightmare - Morals to the Story

True Story:

A photographer recently settled for $275,000 with the Dallas Cowboys after the Cowboys used one of his pictures on clothing and other merchandise without permission. But after the settlement was reached, the Cowboys barred the photographer from ever working in Texas Stadium where the Cowboys play.

The photographer had given a digital file of a photograph to the Cowboys who considered it for use on season tickets. The Cowboys then bought only 250 copies to resell as prints to the public. Later, the Cowboys used the same image on clothing and other items, without getting permission from the photographer for the additional usage.

The photographer had not registered his photo with the U.S. Copyright Office.

When the photographer discovered the infringements and inquired about it, the Cowboys offered him $1,000 in merchandise gift certificates. After trying to negotiate a settlement on his own for about a year, he hired a lawyer. Three years later, a settlement was reached.

Morals of the story:

  • Many infringements come from uses beyond that agreed to. The infringements can come from uses on different products, for longer terms, in extra forms such as print or electronic, in other locations, etc. Watch your client's use of your work closely.
  • Register your images with the U.S. Copyright Office before you give, or within three months of giving, them to a client.
  • Even if you haven't registered your photographs with the U.S. Copyright Office, you are entitled to actual damages from infringements. They can be hard to prove, but sometimes they can add up to substantial sums.
  • While you may be a good negotiator, it can help to have a lawyer to give weight to your position.
  • If you have to sue a client, you probably won't get work from that client again.
  • Legal matters can take time; be patient for your rewards.

Take my advice; get professional help.
PhotoAttorney

Jun 22, 2005

Copyright Notice - Not Required But Helpful

You'll often see a copyright "notice" - the familiar © or the word "copyright" with a date and name of the copyright owner - posted on works of authorship. This copyright notice is no longer required for copyright protection, but it may be a good idea to use it.

Copyright is a legal form of protection granted by the U.S. Constitution for original works of authorship. Things such as books, plays, music, photographs and even websites are protected by copyright law.

If you use the copyright notice, it may stop someone from stealing your work, either because it reminds them that the work is protected or because the notice interferes with their use of the work. Also, it helps to post a copyright notice on your work because the infringer then can't say the use was innocent. You can even use the copyright notice without registering your work with the U.S. Copyright Office, but there are many other reasons why you should register your work.

If you have a website to show your photographs, it likewise is helpful to post a copyright notice on your website's pages. Again, there are no specific requirements for the notice or no certain language is needed for copyright protection for your photos on your website or even the website itself. One caveat - the words "All Rights Reserved" are needed for protection in places like South America, but it's difficult to prosecute your images there anyway.

It's odd that a company (whose owners are not lawyers) would "license" copyright language for others to use on their websites for $9.95, when nothing is required for protection. Put what you want on your website. Put only the basic notice like this: Copyright 2007 Carolyn E. Wright All Rights Reserved. Or, be more aggressive and use the language I use on my photography websites:

  • All photographs appearing on this site are the property of Carolyn Wright Photography. They are protected by U.S. Copyright Laws, and are not to be downloaded or reproduced in any way without the written permission of Carolyn Wright Photography. Copyright 2007 Carolyn E. Wright All Rights Reserved.

Feel free to copy and use that statement at no charge from me. Instead, take the $9.95 that you would have spent on licensing copyright language and put it towards registering your website and photographs. You'll be better off in the long run.

Take my advice; get professional help.
PhotoAttorney®

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Jun 17, 2005

Joint Copyright Issues - When You Work With Someone Else

In general, when the shutter on a camera is tripped to make a photo, the photographer who pressed the button owns the copyright. But photographers often work with others when making their photographs, such as the art director, stylist, assistant or even the Photoshop editor. So does that person get to share with the photographer the copyright of the photograph? It depends.

Unless it is agreed to in writing, if the work done by the other person would not qualify on its own to be copyrightable - such as when the art director has the "idea" to place the model on the hood of a red car - then the copyright is not jointly held. Neither will a copyright for a photograph automatically be deemed shared even though the contributors intended to create a "unified" work. Note that these rules do not apply to the "work for hire" scenario or when you are transferring a copyright.

Instead, for a photograph's copyright to be jointly held with someone other than the photographer, both the photographer and the contributors must have intended at the time the photograph was made to be joint authors. Specifically, the Copyright Act of 1976 states that a joint work is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or inter-dependent parts of a unitary whole." This question is important because when you share the copyright of a photograph with others, you have to agree on how it is to be exploited or licensed, and you must share the profits.

Regardless of the law, though, a contributor to your photograph still may make a claim for joint copyright ownership of it. While you should be able to thwart those efforts, it can cost you time and money and create ill will. So be sure that any documentation that you are required to sign for a job clearly gives you sole ownership of the copyright. And when you hire assistants for your shoot or for Photoshop editing, put it in writing with your assistant that you retain sole ownership of the copyrights regardless of the work performed.

Take my advice; get professional help.
PhotoAttorney®

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Jun 12, 2005

Honoring the Copyrights of Composers, too

Many photographers use music to enhance their photography. But since music is a work protected by copyright law, make sure that you honor the copyright of the composer, too.

Most photographers recognize that copying music from a friend or downloading from a music sharing website is illegal. But even if you purchased the CD or song outright, you may be infringing on the copyrights if you use the music for more than personal purposes.

When you buy music, you are not purchasing the copyright. Instead, you are getting a license to use the music in specific ways. It's the same as licensing your photo to a company for a specific use. If the company uses your image beyond the established permissions, your copyright is infringed. If you give your bride copies of the photos from her wedding with permission to use them for personal use, she would violate your copyright if she even donated them to "Bride's Magazine."

In general, when you buy a CD or a song, the permitted use is for personal purposes only. If you play the music at a party at your house, you probably are still using the music within the particular boundaries. But if you play the music in your commercial studio or used it to accompany your slideshow presentation for a client, you more than likely have gone beyond the rights granted to you when you purchased the CD. Check the small print on the CD to be sure.

So what are your options if you want some music for your photography? You can write your own music or you can get permission from the composer. A couple of websites make it easier to obtain those rights: www.musicbakery.com or www.freeplaymusic.com. You also can use software such as Apple's new Soundtrack Pro or Garage Band to create your own music. These programs are easy to use, even if you don't have much musical skill.

Just as photographers don't want their copyrights infringed, composers don't either. Respect the composer's work. Get the necessary permission when using music to support your photography.

Take my advice; get professional help.
PhotoAttorney

Jun 1, 2005

Copyright Licensing Issues

When you own a copyright to a photograph, you have complete and exclusive control of how it is reproduced, displayed and distributed. These rights may be assigned, sold, transferred or given away. If you decide to authorize others to use your copyright, which also is known as licensing, you may want to consider the following items:

a) Who are you giving the rights to?
b) What specific rights are you granting?
c) Are you authorizing print and/or electronic rights?
d) If you grant electronic rights, what kind? CD? Web?
e) For what time are you granting the rights?
f) Will the rights be exclusive?
g) How will the rights be used? What market or industry?
h) What territory is covered by the rights? North America? English-speaking countries? Worldwide?
i) Are there any work-for-hire implications?
j) How will you be paid? By a flat fee? By royalties?
k) If paid by royalties, how will the royalties be calculated?
l) When will you be paid?
m) Will you allow certain alterations of the work in the use?
n) Will you require certain items with the usage? Copyright notice? Photo credit?
o) Who is responsible for loss, damage or theft of the work?
p) Do you want samples of the use?
q) Specifically retain all other rights to your copyrights - you never know what future usage technology will bring.
r) Make the license subject to being paid in full.

While licensing rights like those referenced above can be done verbally, it is best to put them in writing. You will minimize confusion, and you will have something concrete to rely upon if a dispute arises. To be sure that every important aspect of licensing is addressed, ask an attorney who is familiar with these issues to review the license.

Take my advice; get professional help.
PhotoAttorney