Photo Attorney

May 31, 2006

Photography Is Not Illegal

Especially since September 11, 2001, photographers have been told that they cannot shoot in certain public areas even though it is not against the law. Thanks to the New York Civil Liberties Union ("NYCLU"), photographers may continue to photograph on subways, the Long Island Railroad, and Metro North trains in New York.

Recently, several press and civilian photographers were harassed and threatened with arrest by Metropolitan Transportation Authority ("MTA") and other police officers, telling them that "photography is illegal" there. The NYCLU wrote to the MTA on behalf of the photographers complaining about these incidences. In response, the MTA requested that "any photo activities get their 'prior approval.'" After the NYCLU threatened suit, the MTA conceded in March that there is "no ban on photography . . . ."

Thanks to the NYCLA and others involved in that protest for standing up for photographers' rights. Photographers should continue to understand and prosecute their rights or they may lose them.

Take my advice; get professional help.

May 24, 2006

Fear of Lawsuits

Photographers have certain rights but often are concerned about exercising those rights for fear of being sued. It's a legitimate concern because lawsuits can be costly and stressful, even when you win. The counter concern is that if photographers don't exercise their rights, they may lose them.

Take, for example, the property release. Readers of my blog know that the law does not require permission to take and use a photograph of property, so no release is required except when trademarks or copyrighted works are at issue. Most photographers understand that you may stand on public accessible land to take a photograph of a building without a release.

Some photographers and users of photographs (such as stock agencies) want a property release to use the photograph of that building to allay concerns of being sued. Some want it only if the photograph is used commercially. Will it hurt to get one? Probably not in the short run.

If the building's owner signs the property release, then you have little concern that he will sue you for the use of the photo. But what if he refuses to sign? Then you will have to find another building to photograph and ask for permission again. What if he demands payment? You then must pay for something that you are entitled to for free.

If the building owner signs the release, he will expect the next photographer to ask for a property release, too. If permission is not requested, will the owner sue the second photographer for doing something within his rights? Will all photographers then have to get permission or pay for something when it is not legally required?

What other photographers' rights will erode from fear of exercising them? The first step towards protecting your rights is to know them. The second is to stand up for them.

Take my advice; get professional help.

May 18, 2006

Additional Ways to Protect Your Photos

Photographers often post their images on websites or send digital copies to clients and friends. Those photos can be easily copied and forwarded to others. If copyright information is not included with the photos, it can cause loss of sales, loss of willful infringement damages, and/or loss of credit for the work. Fortunately, there are good ways to provide your important contact and copyright information with your photos.

Adobe Photoshop, Aperture, Lightroom, and other editing and cataloging programs allow you to imbed your copyright and contact information in the metadata of the photo file. For example, after you have opened your photo in Photoshop, select File, and then File Info, and fill in the copyright information there. The other editing and cataloging programs work similarly. Note that this metadata will be removed by using the "Save for Web" utility.

Another good way to include your copyright and contact information and to protect your photo from being copied without permission is to put a watermark on the image. This function puts the copyright notice directly on the photo so that unauthorized use is impaired and the viewer is put on notice of copyright protection. Include your contact information, as well, for potential customers. The steps on how to do put a watermark on your slideshow photos in Lightroom are available at Lightroom News. Further, watermarks are a good idea because they can lead to significant damage awards when the photos are infringed. See my blog post on the details.

While sophisticated computer users can override these efforts to protect your work, they will thwart many unauthorized uses of your photos or give interested customers your contact information. Although infringements will never be stopped, photographers should do what they can to prevent them.

Take my advice; get professional help.

May 9, 2006

Property Releases Revisited

Rarely do you need a property release for legal reasons. Check my blog on this subject.

Extensive searching of federal and state law throughout the United States reveals no case that held that a property release is required to use photographs of property (absent trademark issues - for more on that subject, go here). While not all lawsuits are reported and disputes often are resolved before a case is filed, no incident has been reported of a photographer being prosecuted for using photographs of property without a release (except for the Rock 'n Roll Hall of Fame case where the photographer won). If you know of one that occurred in the United States, please report it here.

Some have speculated about what cause of action a property owner might have to prosecute someone who uses photographs of property without a release. The first theory is really what is called "false lights" and has to do with rights of privacy for people, not property. See my Sept. 14 blog for more on that issue. The second comes from the legal theory of conversion, which has never been applied to photographs of property. In fact, the case law leans the other way.

Note that releases are not needed even for people when the shots are used editorially, which can include gallery shows and book covers (see my blog). At a minimum, it follows that releases likewise would not be needed for photos of property when used editorially.

Photographers should stand up for their rights and not submit themselves to customary procedures that are not legally required. While it is safer to get a release, it is even safer to keep your camera in the bag. Don't let fear inhibit your photography.

Take my advice; get professional help.

May 3, 2006

New Fees for Photographing in National Parks

The National Park Service ("NPS") will start collecting fees for commercial filming and still photography on May 15, 2006. The announcement can be found here.

At first blush, it appears that the implementation of this new policy may alter access for photographers. Instead, according to the Program Manager of Special Uses for the NPS, Lee Dickinson, the only change is that IF you need a permit as previously required, you will have to pay for it.

Most photographers do not need a permit, so you won't have to pay to shoot. Whether you need a permit is explained in my November 03, 2005, blog entitled, "Photographing our National Parks."

The specific requirements are explained on the NPS site, as well.

It is important that photographers know their rights and responsibilities. For now, one of those rights is to photograph the beautiful national parks, usually for free.

Take my advice; get professional help.