Photo Attorney

Mar 30, 2006

Is Posting on the Web Worth the Risk?

Posting photographs on the internet is a risky proposition. They are easy to steal even if you take steps to prevent their theft. Your copyright notice can be cropped out of the photo. A copyright notice placed across the photo impedes the viewer's enjoyment of your work. Metadata with your ownership information can be stripped from the file. "Right-click" copying that has been disabled can be overridden. You may never discover unauthorized uses of your photos to sue for infringement.

So should you stop posting your work on the web? I hope not.

The purpose of copyright law is to improve society through advancement of knowledge. Copyright law gives a monopoly to the author to encourage the author to share the work. If you don't share it, society won't benefit from your work.

While the internet makes it easier to steal, it does not excuse it. Neither should we accept it as a consequence.

Take reasonable steps to protect your work. Include your copyright notice with the work. Imbed your copyright and contact information in the metadata of the file. Tell viewers that they may not download or copy your photos without permission. Use services that track your photos on the internet. Review your website logs to discover hotlinks and frequent hits. Be diligent in looking for and prosecuting infringements. Register your photos with the US Copyright Office to increase your damage awards.

But while the risk of theft is real, most of it is minimal and/or harmless to our photography. We should not be irrational with our response. The more important risk is if photographers stop sharing their work at all.

Take my advice; get professional help.

Mar 27, 2006

Upcoming Speaking Engagements and Workshops

Join me for the following speaking engagements and workshops:

  • Women in Wildlife Workshop. Photograph wading birds and chicks up close in St. Augustine, FL. April 28-30, 2006. Only a couple of seats left!

  • ALASKA! Join me during prime time in Lake Clark National Park to photograph bears and puffins. August 4-10, 2006. SOLD OUT!

  • The Best Raptor Shoot, October 6-8, 2006 (Airport Denver). We'll visit Colorado's raptor country and photograph up to 17 different raptor species.

Mar 24, 2006

Editorial Use of Person's Photograph Is Confirmed

In general, you may photograph people in public. The use of those photographs can be restricted due to a privacy law called the "right of publicity." While the specifics of the law vary by state, it prevents the unauthorized use of a person's likeness for commercial purposes (for advertising or trade). It usually does not apply if the image is used editorially, which includes fine art.

Fortunately for photographers, this law recently was put to the test and it passed. From 1999 until 2001, a photographer named Philip-Lorca diCorcia took photos of people in Times Square. His camera was set on a tripod and strobe lights were placed across the street. The project culminated in an exhibition called "Heads" at the Pace/MacGill Gallery in Chelsea, New York.

One of shots from the project was of Erno Nussenzweig, an Orthodox Jew and retired diamond merchant from Union City, N.J. He sued diCorcia and Pace for exhibiting and publishing the portrait without his permission and for profiting from it. He asked the court for an injunction to stop sales and publication of the photograph and for $500,000 in compensatory damages and $1.5 million in punitive damages. Of note, Nussenzweig complained that use of the photograph violated his constitutional right to practice his religion, which prohibits the use of graven images.

In an affidavit submitted to the court on Mr. diCorcia's behalf, Peter Galassi, Chief Curator of Photography at the Museum of Modern Art, said, "If the law were to forbid artists to exhibit and sell photographs made in public places without the consent of all who might appear in those photographs, then artistic expression in the field of photography would suffer drastically. If such a ban were projected retroactively, it would rob the public of one of the most valuable traditions of our cultural inheritance."

The judge in the case dismissed the suit on First Amendment grounds that the possibility of these photographs is the price every person must pay for a society where information and opinion freely flows. While Nussenzweig is appealing, the good news is that photographers may continue to photograph people in public and may use those shots editorially without the subject's permission.

Take my advice; get professional help.

Mar 15, 2006

Is Your Photography A Business? What Kind?

Some photographers are satisfied to keep their photography a hobby. Others may operate it as a side business to get some money out of it. A few turn their photography business into full-time careers.

When you run a full or part time photography business, you must select what kind of business it's going to be. By default, it's either a sole proprietorship or a partnership. But that may not be the best choice for you. There are several other types of legal entities to choose from, with financial and operational pros and cons for each of them. Evaluate them carefully and seek advice from an attorney and accountant before deciding on a business structure. You can later change your form of business, but that can be difficult and may require extensive documentation.

I've prepared for my upcoming book, "Photographer's Legal Guide," a chart that lists many of those pros and cons (such as administrative hassle, legal protection, ease of set up). I'll send it for free to any one who requests it via email to me at carolyn(at) (change the (at) to @ to send the email - I'm trying to avoid spam). Please include your name and snail mail address with the request.

For this and more important information about your photography, regardless of whether it is a hobby or a business, join me this Saturday for:

The Photographer's Legal Toolkit Seminar
at the Carter Presidential Center, Atlanta, GA
Saturday, March 18, 2006
9:00am - 5:00pm

Take my advice; get professional help.

Mar 1, 2006

Proposed Change to Copyright Law May Affect Photographer's Rights

The purpose of copyright law is to benefit the public. Congress believes that protecting an artist's work from unauthorized copying for a certain time will encourage artists to create. After the protection is removed, all are entitled to enjoy the artist's creation.

But what happens when someone wants to use a work and can't tell whom it belongs to or whether it has passed into the public domain? Perhaps you want additional copies of a photograph of your great-grandmother. There's no studio name on the photo or the studio has gone out of business with no forwarding address. Maybe you want to photograph a sculpture and the contact information has faded and the sculptor's records can't be found.

To address this situation, the U.S. Copyright Office completed a study of "orphan works" - copyrighted works whose owners may be impossible to identify and locate - and submitted its report to the Senate Judiciary Committee on January 31, 2006. The primary goal of the Orphan Works proposal was "to make it more likely that a user can find the relevant owner in the first instance, and negotiate a voluntary agreement over permission and payment, if appropriate, for the intended use of the work." It appears as though the goal has been lost in the process.

Several professional photography groups such as the ASMP, PPA and EP are watching this proposal closely because, as it stands, it negatively affects photographers' rights. While some exception for use of an orphan work is necessary, the proposal makes it too easy for the work to be used and does not compensate the photographer adequately once found. Essentially, an infringer who steals your work can claim that he tried to contact you. His punishment is to pay you what he should have in the first place. That may be hard to collect.

Hopefully, the proposal will be modified dramatically when adapted to legislation. The House Subcommittee on Intellectual Property will hold a hearing on March 8 and several professional photography group representatives will speak on our behalf. Some groups are asking that you contact your representatives now. Others have suggested that we wait to see what the legislation says. Clearly, if the resulting legislation mirrors the proposal, we must make an "all-out" campaign to protect our rights.

In the meantime, do all that you can to keep contact information with your photographs so that your work is not included in that considered "orphaned."

Take my advice; get professional help.