Photo Attorney

Nov 23, 2005

Battle of the Forms - Having the Last Word

Many photographers use standard contracts and invoices to sell their services, but the terms and conditions often differ from those of clients. You also may negotiate deals, going back and forth via email, to reach a compromise. In this battle of the forms, which one wins? The one that stands last.

For example, you may send a client your invoice that states that payment must be paid within 30 days of delivery of the photo to the client. But your client's form sent in response states that it will pay within 60 days after publication. If you take no action after receiving your client's document but deliver the job, you will be subject to the client's terms.

Likewise, if your form is silent on a condition such as electronic use, but the client's form allows that use, you again will be stuck with the client's provisions.

To address this situation, make sure that you have the last word. You may either reply with a letter that specifically rejects the client's additional or contradictory terms or you can simply cross out each provision of concern on your client's form. Place your initials and date in the margin next to each term that is struck and return the marked-up form to your client.

When dealing with clients, getting the last word in is important!

Take my advice; get professional help.

Nov 16, 2005

Copyright Protection for Foreign Photographers

Copyright law in the United States is relatively favorable for photographers. Those of you who reside elsewhere may think that you can't benefit from it. But you can!

All unpublished photos, regardless of the nationality of the photographer, are protected in the United States. Any photo that is protected by US copyright law can be registered, which includes works of foreign origin. Look at Short Form VA for registering photographs. In section 2 where it asks for your name and address, it also asks for your nationality or domicile (the country that you consider your "home"). It does not require that you be a US citizen.

If your photos are first published in the United States or in a country with which the US has a copyright treaty, they also are protected and may therefore be registered with the US Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the US, then you can register your photos with the US Copyright Office. See Circular 38a, International Copyright Relations of the United States, for the status of specific countries.

Once your register your images with the US Copyright Office, you will likely find it worth the time and effort to prosecute infringements that occur in the United States. So, foreign photographers, register your images in the US now!

Take my advice; get professional help.

Nov 9, 2005

Posting Photos on Website = Published?

Many photographers post their images on the web. Are those images "published" for purposes of copyright registration? It depends.

You have published your copyright when you distribute copies of your work to the public by sale, lending, or leasing. Publication also includes the offering to distribute copies of your work to others for the purpose of further distribution. Display of a work without more does not in of itself constitute publication.

The courts have not spoken directly on whether posting a photo on a website constitutes publication. But it should not make a difference that the photo is posted on the internet as opposed to displaying a print. In other words, it is not the act of putting a photograph on a website, but the intent of the posting of the image, that is the determining factor that a photo is published. If it appears that you are offering to license the image or sell a print of the photo from your website, it likely would be classified as published. If you are posting your image only to share it with others, without any obvious intent to sell or further distribute it, it may not be deemed published.

It will not hurt you to register an image as published even if it is later determined not to be published (except for the extra registration work). It CAN hurt you to register an image as unpublished when it is later determined to be published.

Whatever you do, register your copyrights for the most protection.

Take my advice; get professional help.

Nov 3, 2005

Photographing our National Parks

Photographers love to shoot the treasures of our National Parks. But if you look too much like a professional with a tripod or long lens, you might get hassled by Park Rangers who insist on a permit or try to curtail your photography. Who's right? It depends.

Photography in National Parks falls under "Special Park Uses" and is addressed in Director’s Order #53. A "special park use" is a short-term activity that takes place in a park area and:

* provides a benefit to an individual, group or organization, rather than the public at large;
* requires written authorization and some degree of management control from the National Park Service ["NPS"] in order to protect park resources and the public interest;
* is not prohibited by law or regulation; and
* is neither initiated, sponsored, nor conducted by the NPS.

Fortunately, Section 14 of D.O. #53 specifically provides an exception to the written authorization requirement for photography. It states that a permit is not required for:

* a visitor using a camera and/or a recording device for his/her own personal use and within normal visitation areas and hours;
* a commercial photographer not using a prop, model, or set, and staying within normal visitation areas and hours; or
* press coverage of breaking news.

This fits the profile of most photographers, even pros. However, be sure to get a permit when your photography:

* involves the use of a model, set, or prop;
* requires entry into a closed area; or
* requires access to the park before or after normal working hours.

Any activity, including photography, must not:

* cause injury or damage to park resources;
* be contrary to the purposes for which the park was established;
* unreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic or commemorative locations within the park;
* unreasonably interfere with the interpretive, visitor service, or other program activities, or with the administrative activities of the NPS;
* substantially impair the operation of public facilities or services of NPS concessioners or contractors;
* present a clear and present danger to public health and safety; or
* result in significant conflict with other existing uses.

D.O. #53 lists a "sunset date" of April 2004. A sunset law requires administrative bodies to periodically justify their existence to the legislature. While the confirmation of D.O. #53 has been held up by Public Law #106206 because of other issues, there is no need for concern. The Program Manager of Special Uses for the NPS, Lee Dickinson, confirmed via telephone this week that the NPS considers D.O. #53 "still in effect." She also expects P.L. #106206 to be implemented soon.

So for now, photograph our beautiful National Parks to your heart's content. Keep a copy of the D.O. #53 in your camera bag to share with the Ranger, if needed. And if you get harassed, contact an attorney to determine your rights and remedies.

Take my advice; get professional help.