Photo Attorney

Oct 25, 2006

Liability Releases - Worth the Paper They're Written On?

Many photographers who run workshops or invite customers onto their property ask their clients to sign liability releases. The releases purport to relieve photographers from a legal duty to the clients. Do they work? In some cases.

The law does not like exculpatory agreements because they encourage a lack of care, but courts recognize them in certain situations. To be effective, a release must state that the client's decision to sign the agreement was voluntary and with full knowledge of its legal consequences, among other things. Regardless of what it says, however, the agreement can release the photographer only from liability when it was caused by "ordinary negligence," not by "gross negligence" -- where the photographer showed reckless or willful disregard for the client.

Many releases claim to discharge the photographer from liability for damages that the client and the client's heirs may incur. But a release can bind only the person who signs it. As a result, some courts have found that a liability release does not extinguish a client's heirs' claims for wrongful death.

What should you do to protect yourself? Get a lawyer to draft your release, have your clients sign it, operate your business as safely as you can, and get insurance just in case it's needed.

Take my advice; get professional help.

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Oct 20, 2006

What To Do When Minors Infringe . . .

Some of the most technically-astute people these days are the young. They can disable the best-known protection and then copy your photos off of the web. They are wizards at using photo editing programs to make impressive derivative works or up-rezzed prints. But can you sue minors for those infringements? It depends.

As noted in my previous blog, minors don't have the capacity to contract. But you may be able to sue them. While copyright infringement cases are filed in federal court, federal courts will look to the state law where the minors live to determine whether you can hold them responsible for their infringing activities. The courts usually will appoint guardians to represent the minors.

While you may not want to prosecute little Susie for using your photo of a koala bear as her screen saver, you may get a little peeved when you find little Johnny selling t-shirts with a silk-screened copy of your grizzly bear photo.

Take my advice; get professional help.

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Oct 13, 2006

When You Hand Clients Contracts, Mum's The Word

A relatively new comic strip,, is hilarious and can be educational, too. Take, for example, this
September 7, 2006 post.

Clients sometimes display discomfort when signing contracts. In response, photographers may try to explain what the contract says so it doesn't seem so intimidating. Don't do it. In fact, don't say anything except to suggest that the client read the contract before signing it. Otherwise, you may invalidate the contract.

If you use false statements to induce someone to sign a contract, the contract can be held void as if it were never signed. Unless you carefully restate what is in the contract and can prove that your statements were accurate, an unhappy client might claim that your summary of the contract was misleading and constituted fraud.

Instead, follow the duck's example and keep your quacks to yourself while the client reads or, at least, signs your contract.

Take my advice; get professional help.

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Oct 5, 2006

Jury Finds Unauthorized Use of Photo=Fair Use

In a tragic decision for photographers, The San Jose Mercury News defeated Christopher Harris' copyright infringement lawsuit in August. The jury in the federal court in San Francisco took one hour to decide that the newspaper's use of Harris' photograph constituted fair use, despite the newspaper's removal of Harris' copyright notice before publishing the photo with a book review.

Background of the case can be found on my January 10th blog.

After the verdict, The Mercury News' lawyer explained:

This is a classic example of how newspapers use material that is sent to them every day. If a photographer or photo agency had veto over the use of these kinds of images, then newspapers would just stop using them and readers wouldn't get the visual information. . . . This is the kind of information that newspapers are supposed to provide to the public.

This is not the kind of protection that copyright law is supposed to provide to photographers. This is an erosion of rights that photographers should be afraid of . . . very afraid.

Take my advice; get professional help.