Photo Attorney

Feb 28, 2007

Alert: Photographers Barred From Sporting Events

Here is another example of the attempts to narrow photographers' rights. Photographers now are not allowed to photograph a Louisiana High School Athletic Association game unless they sign a form agreeing that they will not sell prints on the Internet.

Feb 26, 2007

PhotoAttorney's Photo in NANPA Showcase

My photo, "Grizzly Chase," is the Showcase image for the front page of the NANPA website for Monday, Feb 26, 2007. See more winning photos in the Members' Showcase Gallery.

Feb 23, 2007

Does Your Web Site Expose You to Liability Elsewhere?

Many photographers advertise their services and photos on the Internet. So if you sell a print to someone who lives across the country from you, can you be sued in that person's state? It depends.

Whether you can be sued in a state depends on whether the court there has jurisdiction over you. "Due process" under the Constitution requires that you have sufficient "minimum contacts" with the state to be sued there. What qualifies as minimum contacts varies a bit by state and is often a judgment call by the court. Does soliciting for photography work via the Internet meet that threshold?

This issue recently was considered by an appellate court in California. A used car dealer in Florida advertised a car for sale on the Internet and sold it to a California resident. The court applied its sliding scale of jurisdiction via the Internet as first stated in the Pavlovich v. DVD Copy Control case.

There, the court held:

At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper.

At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction.

The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.

In the used car case, the court found that the dealership's passive Internet advertisements and few car sales to the state did not qualify as minimum contracts. It was important to the court's consideration that the car dealer's web site was not interactive, no files were exchanged via the web site, and the web site did not target California residents specifically.

When you choose to advertise your services via a web site, be careful how you solicit your work or you may find yourself defending a lawsuit in some place far from your home.

Take my advice; get professional help.

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Feb 20, 2007

New Speaking Engagement Announced!

Just added! Please join me at the DWF (Digital Wedding Forum) Convention, March 26-29th, at the Westin Casuarina Hotel in Las Vegas, Nevada.

I also will be speaking at:

ISAP's Annual Symposium
March 15-17, 2007

Pensacola, FL

CNPA's 2007 Annual Meeting
May 17-20, 2007

Boone, NC

Other dates are being scheduled. Watch the right-hand column for more information!

Feb 16, 2007

Challenge to Copyright Act Rejected

The push by some to reform copyright law got a push back by the Ninth Circuit Court of Appeals in the recent case of Kahle vs. Gonzales. Argued by Lawrence Lessig, a supporter of the Creative Commons licensing model, the court saw through the veiled attempt to put orphaned works into the public domain.

In sum, Kahle claimed that the change from an "opt-in" to an "opt-out" for copyright extension under the 1992 Automatic Renewal Act requires First Amendment review. Kahle also complained that the current copyright term (life plus 70 years) violates the copyright clause's "limited times" prescription. If he had been successful, orphaned works would have lost their copyright protection. Instead, the court discarded Kahle's argument finding that it, in effect, had already been reviewed and rejected by the U.S. Supreme Court in Eldred v. Ashcroft.

The court's ruling can be appealed. But for now, creatives can take a breath of relief.

Take my advice; get professional help.
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Feb 14, 2007

PhotoAttorney's Wildlife Photos in Gallery Show

For those in the middle Tennessee area, my wildlife photos are on display at The Center for the Arts in Murfreesboro during February. The reception is this Saturday, Feb. 17, from 2-4 p.m. Hope to see you there!

Feb 12, 2007

Bob Krist Talks To PhotoAttorney About Releases and Rights

Bob Krist interviews PhotoAttorney about model releases and photographers' rights for his monthly column in the March issue of Outdoor Photographer.

Feb 9, 2007

Second Anniversary of PhotoAttorney Blog

Thanks to your loyal readership, the PhotoAttorney blog is now two years old! Let your photographer friends know about this free blog so they can learn how best to protect their work. Subscribe to the RSS feed so that you are alerted when new posts are available.

With more than 100 blog entries on a variety of subjects that affect photographers, the best way to find information is to use the Google search tool located at the bottom right hand corner of the page. The most common researched issues are on model and property releases.

You can learn even more about how to protect your photography with my new book, the Photographer's Legal Guide, available here, through Amazon, and at

Thanks again for your support and I look forward to working with you to protect your photography.

Now for this week's blog . . .

David Shirks at Goliath's Threat - Photos of Property

Large organizations often try to intimidate photographers from using pictures of their property by alleging the uses are illegal but the law has yet to support their claims. These threats understandably give pause to the independent photographer who may not have the funds to fight a lawsuit even when in the right. Unfortunately, photography companies are now altering their practices.

A major stock agency recently distributed the following notice it received from The Zoological Society of San Diego (that runs the San Diego Zoo) to its photographers:

It has come to our attention that an image on your website, [name removed], may have been taken on grounds at the San Diego Zoo. The Zoological Society of San Diego does not allow any personal photos to be taken and used for commercial purpose. We have strict policies concerning this matter. The policy for photo and video taken at the Zoo and the Wild Animal Park that can be found on your admission ticket into the facility is stated as follows:

The commercial use of photographs, video and film you may have taken during your visit is strictly prohibited without the full written consent of the Zoological Society of San Diego.

Furthermore, the Zoological Society of San Diego policy prohibits photographs and/or video taken on grounds to be utilized commercially and/or promotionally. The Society is a private, non-profit organization, which relies on exclusive images of our plant and animal collection in order to raise money for our worldwide conservation efforts. You are, therefore, prohibited from selling your images in a gallery, on the Internet or for any other commercial purpose, as well as referencing the Zoological Society of San Diego. Please remove any images from your web-site [name] upon receipt of this letter.

First, the Zoological Society never cites a law to support its "policy" because selling photos taken there does not break any laws. Second, selling images in a gallery or on the Internet does not necessarily qualify as a "commercial" use. Third, the Zoological Society may not rely on a term on the ticket/receipt as binding since a person would have not noticed it at or before the contract was entered into when acquiring the ticket (hence the need for "I Agree" check boxes on websites and shrink wrap packaging on software signifying your agreement for the license).

An increasing number of organizations are complaining about photographs of their property. A list can be found on the Picture Archive Council of America's website. They make all kinds of claims - trademark violations, trespassing, property ownership/control - but none of them are supported by law except for protection of other copyrighted works (statues, but not buildings) and in a very few cases, trademark infringement/dilution.

The Zoological Society has the right to prevent the taking of photographs on its property but it does not try to stop it. Instead, it sponsors and advertises photography activities on its grounds. That it tries to restrict the use of the photos after they are taken there is astonishing.

It is disappointing that a stock agency would submit to the Zoological Society's request by removing images designated as being taken at the Zoo and then passing the notice on to its members with a recommendation to comply. Individual photographers may not have the resources to fight Goliath, but if photographers stand on the shoulders of others, we may be big enough to knock Goliath down.

Take my advice; get professional help.

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Feb 5, 2007

Alert: Photographers Arrested for Taking Photos of Women As They Appeared in Public

To understand and hopefully to fight the narrowing of photographers' rights, occasional alerts will be posted here on in addition to the weekly blog. Here's the first one.

Note that the photographers were taking pics of women only as they could be seen by anyone (as opposed to the process known as "upskirting").

Feb 2, 2007

Review of "Photographer's Legal Guide"

Here's a review of my new book, the Photographer's Legal Guide. Also watch for the March issue of Outdoor Photographer. Bob Krist interviewed me for his monthly column on releases.

Now for this week's blog entry . . .

Is Your Photography A Crime?

Since 9/11, security issues have affected everyone's life. While photographers should be respectful and understanding of those concerns, we also can help to protect our rights by knowing them. But sometimes, even knowing your rights won't stop you from being hassled.

This happened to one photographer who had parked near an oil refinery to take shots of the smokestacks. He was told by the security guards that he was breaking the law. He knew better, but wisely drove away upon request of a deputy sheriff. I was interviewed for this revealing article on this unfortunate incident.

When taking photos, the first step to determine whether your photography is illegal is to ask whether what you're doing would be illegal if a camera was not in your hand. Are you trespassing? Are you invading someone's privacy? Is your behavior causing annoyance, alarm, or inconvenience, especially to another person? Are you blocking access or loitering? If not, then next there are a few other circumstances of concern. Are you taking photos of a copyrighted work? Are you photographing a military institution or in a courtroom? Many government items may not be photographed, such as federal seals, insignia, currency, or stamps. You aren't allowed to photograph government top secret, confidential or restricted information, either, but few of us have access to it. If you aren't committing any of these crimes, your photography likely is legal.

Although it is difficult to address every scenario specifically, Bert Krages has written a fantastic book on this subject, called the "Legal Handbook for Photographers." Get it, read it, and study it. Unfortunately, being hassled for exercising your rights is all a part of being a photographer today.

Take my advice; get professional help.

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