Photo Attorney

Jan 28, 2007

Orphan Works Revisited

Forwarded from THE ILLUSTRATORS' PARTNERSHIP:

It appears that Orphan Works legislation will soon rear its head again. The word from Washington is that it will again be fast-tracked and its sponsors will resist "any significant modifications to the existing draft."

Last year, visual arts groups came together as an informal coalition. We shared information and coordinated a letter writing campaign. Monday, Jan. 29 these groups are scheduled to meet in Washington to discuss a unified strategy. The groups (listed below) will formally be called The Imagery Alliance.

Each member organization has been asked to make a voluntary contribution to the Alliance. But since some groups are forbidden by their tax-exempt status to engage in lobbying, the Alliance must first determine the best way to collect and distribute money. In some cases, it may be necessary for groups to simply educate their members by directing those who wish to contribute to a tax-appropriate orphan works fund. We'll update you when this has been determined. We believe that any money raised in this cause should be used specifically to improve Orphan Works legislation and not consumed in maintenance, administration or for other organizational expenses.

-The Board of the Illustrators' Partnership

The Imagery Alliance:

Advertising Photographers of America (APA)
American Institute of Graphic Arts (AIGA)
American Society of Media Photographers (ASMP)
American Society of Picture Professionals (ASPP)
Association of Photographers (AOP) (UK)
Art Directors Club (ADC)
British Association of Picture Libraries & Agencies (BAPLA)
Coordination of European Agencies Press Stock Heritage (CEPIC)
Editorial Photographers (EP)
Graphic Artists Guild (GAG)
Illustrators' Partnership of America (IPA)
North American Nature Photography Assoc. (NANPA)
National Press Photographers Assoc (NPPA)
Picture Archive Council of America (PACA)
Picture Licensing Universal System (PLUS)
Professional Photographers of America (PPA)
Society for Photographic Education (SPE)
Stock Artists Alliance (SAA)
White House News Photographers Assoc. (WHNPA)

Please post or forward this email in its entirety to any interested party.

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

For background on the Orphan Works Act, see my March 1, July 3, and August 21 blogs.

Jan 25, 2007

Warning - Website Provides Misleading Info on Copyright Registration

The Internet can be a wonderful source of information or it can lead you down a path of destruction. Consider this one example of propaganda - blog.myfreecopyright.com. It states here that "in the United States and most other countries you are unable to sue for Copyright infringement unless you have publicly registered your Copyright. My Free Copyright provides a third party date registration service and satisfies this legal requirement." (Emphasis added). But relying on this information will get your copyright infringement case dismissed.

To enforce your rights in a U.S. federal court for infringement claims, you must first register your copyright with the U.S. Copyright Office - not with a third party service - before you bring suit in federal court. It doesn't matter when the infringement is committed or the registration is completed, you still must register before filing suit or your case will be dismissed. This happened to Glynn Wilson when he sued Kitty Kelley (see my March 26, 2005, blog) and recently to Angela Brooks-Ngwenya in her 7th Circuit case against Thompson, 2006 WL 2972691. Here are excerpts from the Court's Opinion in that case:

Angela Brooks-Ngwenya contends that, while working for the Indianapolis Public Schools, she devised a set of educational materials for use with underachieving middle-school students. According to her complaint . . . , the school system . . . copied them without permission or compensation. The complaint was filed in state court and removed under 28 U.S.C. 1441 because the copyright claim arises under federal law. The district court dismissed the copyright claim with prejudice after Brooks-Ngwenya conceded that she had not registered her work with the Copyright Office. . . .

Registration is a condition to copyright-infringement litigation. "No action for the infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title." 17 U.S.C. 411(a). Although Brooks-Ngwenya asserts that she failed to register because she did not understand the necessity of that step, and then because she "was distracted from following through" because of "interruptions coming from E staff members", that is irrelevant. The statute makes registration or preregistration necessary. That's all there is to it. Registration is not complex (it is no harder that filing a lawsuit), and distractions must be overcome if authors want to litigate.

Brooks-Ngwenya tells us that she registered the work on May 19, 2006, while her appeal was pending. That is too late to save this litigation. A rule in the form "no action shall be instituted until . . ." means that the condition must be fulfilled before the litigation begins. Satisfaction of the condition while the suit is pending does not avoid the need to start anew. . . .

Failure to satisfy a condition to litigation does not imply, however, that the plaintiff loses outright. A suit that is premature because a condition to litigation remains unsatisfied must be dismissed without prejudice. . . . If the condition can be satisfied while time remains in the statute of limitations, then a new suit may be filed and resolved on the merits.

MyFreeCopyright.com uses the terms "registration" and "proof" throughout its web pages so that some may think that registering with MyFreeCopyright satifies the registration requirement according U.S. Copyright Law. It does not. MyFreeCopyright instead provides a service to prove the existence of your copyright on a certain date. That rarely is an issue in copyright cases especially for photography and certainly does not meet the U.S. Copyright Office registration requirement to file suit.

Don't be mislead. Consider your sources and do your homework so that you can to protect your work.

p.s. Thanks to Howard Kier for the alert on MyFreeCopyright.com blog.

Take my advice; get professional help.
PhotoAttorney®

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Jan 19, 2007

Antitrust Activity and Price Fixing by Photographers

Many photographers are unsure about how to price their goods and services, so they often will check with others to see how they do it. They sometimes will solicit this information on web forums only to be told that activity is illegal. But is it? It depends.

Asking other photographers what they charge for their services is not illegal. Making an agreement with other photographers about what to charge likely would violate restraint of trade laws. Your words or even your actions can comprise an agreement.

Most states have restraint of trade laws that prohibit price fixing. Federal laws are known as antitrust laws or the "Sherman Act and Clayton Act." And most laws, state and federal, make price fixing a crime. A lot of people have gone to jail for this. The problem arises because the first step in making price fixing agreements among competitors is exchanging information about prices. It is the second step that kills you. So you need to ask yourself, "Why do you want to know what your competition is charging?"

For example, if you continually ask other photographers what they charge and then adjust your pricing to match theirs, your conduct probably is illegal. A photography organization that conducts a survey of pricing and then posts the results or "average" along with even a subtle suggestion that this is the price to charge might be deemed to have conducted illegal activity. If you ask others what they charge so that you don't price yourself out of the market or charge too little, then you probably aren't breaking the law. But it's best to check your competitors' pricing rarely and not automatically use it as an excuse to change your prices to match theirs. When you are asked what you charge, give ball park approximations rather than exact numbers.

In reality, the photography industry is competitive and it would be difficult to fix prices. But whatever you do, it's best to stay under the radar of the U.S. Justice Department.

Take my advice; get professional help.
PhotoAttorney®

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Jan 11, 2007

Confirming Agreements in Writing

Photographers often make agreements by phone or in person to provide their services. While problems can arise later, they likely will be minimized if the deal is put in writing. But many photographers are uncomfortable about the process and won't do it unless they have a full-blown formal contract. Thankfully, there are alternatives.

As mentioned in my last blog, the PLUS organization is making it easier than ever to prepare a written license for your photos. Your photography association may provide forms tailored to your business. The client may offer you a contract (but be sure to have it reviewed by your lawyer). Tad Crawford's book, "Business and Legal Forms for Photographers," will get you several more forms to use. Find an attorney to help you with specific contracts for other work. But, at a minimum, you have another option that can protect yourself to some extent. That is, after you make an agreement with someone, send them an email or letter confirming what you each promised to do.

For example, if a client calls to book you for a product shoot, send the client an email thanking her for the contact and then list the details of the agreement. You can cast it as an attempt to ensure that your work will meet the client's needs, such as: "as I understand our arrangement, I will do the following . . . and you will do . . . ." To help construct the email, include all of the "who does what, where, and when" in a list format. Finish the email with an opportunity for the client to disagree ("please let me know if I have misunderstood our agreement"). It's a great professional touch and serves as a contract for the job. While the other, more formal, options may better protect you legally, this exercise will get you on your way to better business practices.

Photographers are good at recording subjects through their lens. They next should become good at recording agreements with their "pen."

Take my advice; get professional help.
PhotoAttorney®

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Jan 4, 2007

Licensing Made Easier

Hopefully, your New Year's resolutions include putting all of your licenses in writing. To help with that process, the PLUS Coalition (Picture Licensing Universal System) has supplemented last year's release of the PLUS Picture Licensing Glossary with four additional licensing standards: The PLUS Media Matrix, PLUS Packs, PLUS-ID System, and PLUS License Data Format.

PLUS Media Matrix
The PLUS Media Matrix provides a standardized hierarchy of media categories, media types and media options, allowing users to easily identify and differentiate specific types of media usage such as "Point of Purchase," "Transit" and even "Edible Media." One of the best tools for the photographer is the "License Generator."

PLUS Packs
PLUS Packs introduce a new universal standard for streamlined "rights-managed" image licensing. Simple and convenient, PLUS Packs offer the flexibility of broadly defined rights, in a form that is simple, straightforward and transparent. PLUS Packs include the most common commercial, editorial and personal uses.

PLUS-ID System
PLUS has assigned a universal Matrix-ID code to each type of media and to each media usage option. Art buyers, designers and publishers can use PLUS Matrix IDs as a convenient and precise means of specifying usage rights for commissioned and stock images when communicating with any artist or stock agency, worldwide.

PLUS License Data Format
The PLUS License Data Format provides a universal standard for summarizing information essential to the understanding of an image license, such as the names of the parties, permissions granted, and any limitations on the use of the image. The License Data Format is machine readable, and is used by artists and stock agencies to embed image license information in digital image files, allowing customers to easily view the usage rights associated with any image.

The PLUS standards will appear in software used to create, edit, manage, browse, distribute and license images. Additional PLUS components now under development include the PLUS License Generator, License Information Panels, License Embedder & Decoder, Artist & Licensor Registry and the License Registry, all launching in 2007.

As discussed in my July 26, 2006, blog, the PLUS Coalition promotes clear and precise communication, leveraging current technologies to allow license information to travel within digital image files. PLUS makes image licenses easy to understand and easy to use. Take the next step by incorporating these new tools into your normal workflows to better protect your work.

Take my advice; get professional help.
PhotoAttorney®

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