Photo Attorney

Sep 30, 2006

What Not To Do - Holding Clients' Photos Hostage

Setting a price for your photography services is more than finding a happy medium between one that's too high that you lose customers or too low that you're giving away the farm. You must add some legal factors to the equation. For example, you can make your prices "subject to change," but you can't use them to bring a customer in and then charge a different fee.

Mark Roob, a Wisconsin wedding photographer, must have missed class when this important lesson was presented. Once his clients signed a contract for his package of 80 photos, he prevented others from shooting at the wedding. After the wedding, he insisted that the couple purchase additional photos at a higher price or pay more for the original 80 photos.

His clients complained to the authorities. A jury found him guilty of felony for fraudulent representations and writings. He was sentenced to 3 years in prison, was given 5 years of probation, and was fined $400. As a condition of probation, he was ordered to refund the client's money and to give them all proofs, photographs, and negatives (but he retained the copyrights since Section 201(e) of the Copyright Act prevents an involuntary transfer of copyrights).

You can read the court's order here.

Keeping your clients satisfied involves more than just taking good photos. Know your legal obligations to them, as well.

Take my advice; get professional help.

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Sep 28, 2006

Good News, Bad News on Orphan Works Act

From the Illustrators' Partnership:

First the good news: The Copyright Modernization Act (a/k/a Orphan Works Act) appears to be dead for this year. For the third time in as many weeks the bill failed to make it out of mark-up today, and in two days Congress adjourns for this session.

Now the bad news: Lamar Smith seems committed to this awful bill and has promised to bring it back next year.

And a caveat: Congress returns after elections for a "lame-duck" session, so the bill could still be attached to some other unrelated bill and passed into law without discussion. Don't breathe too easily until this Congress is adjourned for good.

Although there's little reason to break out the champagne over this development, the illustration community should take great satisfaction from the knowledge that your unprecedented efforts have brought sufficient scrutiny to this bill to have stalled it so far. Remember that in March, the bill's sponsors warned us that it would be law by now and that any group that opposed it would be "ignored" and "left behind." It hasn't worked out that way.

Because of your efforts and those of our allies, the photographers, textile designers, greeting card manufacturers and others, Orphan Works legislation has now been exposed as a Trojan Horse for those who want to see a radical change in copyright law. We need to stay vigilant and we must expect that when the bill comes back (in whatever form) its sponsors will be prepared for principled opposition. They'll plan their strategy accordingly, and we should be ready to renew our campaign all over again.

In the meantime, thanks to all of you for a united effort. You did a fantastic job. We'll pass along more information when we learn more.

- Brad Holland and Cynthia Turner,
for the Board of the Illustrators' Partnership

For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists.   

Sep 22, 2006

No Bull - Don't Shoot That Copyrighted Work Without Permission

Photographers often photograph sculptures in parks or other publicly accessed areas. While sculptors have difficulty preventing all unauthorized reproductions of their copyrighted works, it can be worth the effort to prosecute those who make money off of them.

Take, for example, the famous bull sculpture that has come to symbolize Wall Street. It took the sculptor, Arturo Di Modica, two years and $350,000 to create the bull. He originally placed it in front of the New York Stock Exchange but the police had it moved to Bowling Green Park.

Modica registered the bull sculpture in 1998. As the copyright owner, he has the exclusive right:

- To reproduce the copyrighted work;
- To display the copyrighted work publicly;
- To prepare derivative works based on the copyrighted work; and
- To distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

Arturo has made money from display of the bull in movies and advertising. But he recently filed suit against Wal-Mart, galleries, and others for selling photos and reproductions of the bull without his permission. He has asked that the alleged infringers stop their activities and give him a share of the profits.

We will have to wait for results of Arturo's litigation. In the meantime, get permission from copyright owners before shooting their work or they may first see red and then later green.

Take my advice; get professional help.

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Sep 16, 2006

Capacity to Contract

Photographers often enter into contracts with others, especially when hired to do a shoot. But if the client does not have capacity to contract, then the contract might not be worth the paper it's written on. You may get stuck doing the job for free.

While people generally are given the freedom to contract, they sometimes are deemed by law to be unable to make decisions in their best interest. The law believes that minors, people with a mental disability, those who are in bankruptcy or people who have impaired judgment due to illness, disability, hypnosis, alcohol or drugs do not have capacity to contract. While you may agree to photograph a bride's wedding and she promises to pay you, if she is a minor (under 18 for most states) she can later disaffirm that contract. If you already have shot the wedding when she voids the contract, you may not be paid.

The test of whether someone was mentally impaired when contracting is if he could understand the nature and effect of the contract. Contracts with mentally impaired are void only when a court has previously determined the person to be mentally incompetent.

When contracting with clients, make sure that when they sign on the dotted line they have the capacity to be bound to that contract.

Take my advice; get professional help.

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Sep 9, 2006

Does the Client Have Standing?

Example: A client hires you to take pictures of a model. You own the copyrights to the photos, but the client subsequently tells you to not use the photos because you don't have a model release. Is the claim legally valid? Probably not.

For threats to be legally effective, the complainer must have "standing." Standing is the legal principle that a persons only may make claims for their own rights and not for someone else. In the scenario above, unless the model is an employee of the client, the client has no standing to complain about your use of the model's right of publicity. Only the model can sue you for possibly violating that right.

While you don't want to anger clients, sometimes it's best to stand up for your rights. Make sure that clients have standing to complain and a valid complaint before you succumb to their threats.

Take my advice; get professional help.

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Sep 4, 2006

Book Cover Photo is Deemed Editorial Use

Photographers often have difficulty knowing whether a certain use of a photograph is editorial or commercial. If the use is editorial, then no model release is needed from the person in the photo. Many photographers assume that since book covers help to sell the book, a photo placed there must be a commercial use. That assumption recently was proven wrong.

Thais Cardoso Almeida's photograph was published on the cover of a book called "Anjos Proibidos" or "Forbidden Angels." posted the book cover on its website as part of its sales listing. Almeida sued Amazon in Florida for right of publicity, civil theft, and invasion of privacy claims. The Florida court awarded summary judgment to Amazon on all claims and Almeida appealed to the 11th Circuit Court of Appeals.

The 11th Circuit affirmed summary judgment for Amazon. In sum, it held that Amazon's incidental display of photographs from the cover or inside of a book was not for a commercial purpose. Amazon's display of the book (and Almeida's photograph) was essentially the same experience provided by a bookstore for its customers and did not create a right of publicity claim.

Knowing your rights as a photographer can make your job easier. Fortunately, we now have more knowledge as to what those rights are.

Take my advice; get professional help.

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