Photo Attorney

Nov 24, 2006

Managing Your Copyrights After You're Gone

Photographers may think that their most important property items are their expensive digital SLR and lenses. But their copyrights last much longer and can be more valuable. Sadly, photographers rarely protect and manage their copyrights as well as they do their equipment, including in their estate planning. Fortunately, there is an easy way to correct that deficiency.

Copyrights are one form of intellectual property ("IP"). IP rights may be protected at law in the same way as any other form of property, such as your house, car and camera equipment. Because copyrights created since 1978 last 70 years after the photographer's death, they can have significant value. If you include them in your will, you can direct their use after you're gone.

Recently, a famous book author failed to plan for the management of his copyright upon his death. After hearing of the situation, a concerned lawyer prepared a simple will that may help creatives, including photographers, to more easily make plans for their IP after their death. The details are available at

Not to decide to protect your work is to decide that your work won't be protected. Do what you can today to make sure that your heirs benefit from your hard work and talent.

Take my advice; get professional help.

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Nov 18, 2006

New Law Affects Photos of Trademarks

Photographers often take photos that include trademarks. As reported in my February 9, 2006, blog, proposed amendments to trademark law raised concerns as to whether it would be more difficult for photographers to include trademarks in their photos. The good news is that the final language of the new law is more favorable than we feared.

The Trademark Dilution Revision Act ("TDRA") became effective October 6, 2006. The Act establishes a "likelihood of dilution" standard rather than "actual dilution" when a challenged and allegedly diluting mark has already been put into use. The new law also provides for relief from both dilution by blurring and dilution by tarnishment. Dilution by blurring occurs when "an association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark." A famous mark now means it is nationally famous and is "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner."

Of specific concern to photographers were suggested revisions to the "fair use exceptions" for trademarks. The proposal eliminated "noncommercial use of a mark" and changed the fair use definition. Fortunately, the final TRDA maintained the "noncommercial use" exception. The fair use exception has been revised to include "any fair use, including a nominative or descriptive fair use, or facilitation of such fair use." This language appears to be more inclusive than that originally proposed.

While the final affect of the TDRA won't be known until the courts interpret it, photographers can breathe a bit easier when shooting photos that include trademarks.

Take my advice; get professional help.

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Nov 8, 2006

Free (and Good) Information for Photographers

The internet is a tremendous source of information - some good and some bad. Some really good (and free) information is available through Yahoo groups, such as APANet, ASMPproAdvice, and STOCKPHOTO, as well as the ASMP website itself.

Take, for example, this recent post from Judy Herrmann, an accomplished professional photographer, on APANet in response to the following question:

When does simple slow- or non-payment of an invoice become a case for copyright infringement when the images are being used without payment?

Hi John -

Vic Perlman (an IP Attorney that's worked for ASMP for the past 12 years) and I just gave a seminar at Photo Plus, Business Practices for the Digital Age, in which we addressed this exact issue.

If your license agreement and/or terms and conditions explicitly state that the licensing of the usage rights is contingent upon full payment of your invoice, then non-payment of your invoice constitutes copyright infringement. If it doesn't, then you're most likely looking at a contract dispute.

If your estimates and invoices do not include that language, start using it right away!

Remember, that any copyright infringement suit lacks teeth unless the images were registered with the US copyright office before the infringement occurred.

The only exception to this is if the images were legitimately published (publication by an infringer doesn't count) and you registered them within 3 months of initial publication. In that case only, you'll still be protected against an infringement that occurred between the date of first publication and the date that you registered the images. Again, though, you only get this protection if you really did register the images as published works within 3 months of first publication.

In the meantime, even if your terms don't include this language, you can send them a cease and desist letter that could prompt them to settlement. Be sure to have an attorney draft or at least review the letter as a poorly worded cease and desist letter can ruin your chances for bringing a future successful suit in the matter.

Hope this helps!
Judy Herrmann

H E R R M A N N + S T A R K E L L C
d i g i t a l p h o t o g r a p h y
410-203-2440 ph. 410-203-2448 fax

Some of the best things in life are free. Just make sure that they are trustworthy.

Take my advice; get professional help.

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Nov 1, 2006

The Ethical Photographer

Photographers often are asked to photograph sensitive subjects and photo retouchers frequently are expected to alter reality. While these activities may not be legally prohibited, should ethics mandate certain responses?

While the law represents some ethical principals, law and ethics are not interrelated. Many acts that may be deemed unethical are not illegal and many unlawful acts may not be immoral. Consider these recent instances where law and ethics affected photography.

(1) Photographers shot the Amish despite their beliefs that prevent them from having their picture taken.
(2) A photographer was accused of manipulating a photo of a little girl to give her cleavage.
(3) Russian airport police seized politically provocative photographs.
(4) A retoucher altered the picture of a model's body to unrealistic proportions.
(5) A photographer allegedly manipulated a photo of Beirut.

Many professions have adopted ethical codes. Lawyers have Model Rules of Professional Conduct. Doctors have the Principles of Medical Ethics. The National Association of Realtors has a Code of Ethics and Standards of Practice.

What about photographers? Areas of photography are so diverse that one set of ethics can not apply to all. For example, the National Press Photographers Association's Code of Ethics can't fit the needs of nature or fashion photographers. The North American Nature Photography Association's "Principles of Ethical Field Practices" doesn't address all ethical concerns for nature photographers and certainly won't relate to product photographers.

Perhaps each professional photography associations should develop an applicable code of ethics for its industry. In the meantime, each photographer can include ethics in the equation when calculating shutter speed and aperture.

Take my advice; get professional help.

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