Photo Attorney

Mar 28, 2007

Educate Your Users!

The motion picture and music industries have done better jobs than photographers with educating their users about copyright protection for their work. While photographing The Brilliant Inventions at their gig last Friday, I was pleased to see that the artists were protecting their work by, at least, this informal note.

Mar 24, 2007

PhotoAttorney Presentations

Enjoyed speaking to the Aviation Photographers at the ISAP Symposium last week!

Look forward to presenting at the Digital Wedding Forum this week!

Keeping Legal Communications Private

Photographers sometimes encounter legal problems with their photography business. The first response may be to share the concerns with other photographers and friends to enlist their support and advice. After the photographer engages an attorney to help with the problem, however, you must be careful not to share too much.

The Attorney/Client Privilege is a long standing legal principle that protects communications between attorneys and their clients. It is designed to encourage openness and honesty so that the attorney can provide more informed and effective counsel to the client. The privilege becomes especially important in the litigation context because privileged communications, whether written or oral, are not disclosed to the opposing party. So your discussions about strategy and analysis of your case are kept private.

A waiver of the privilege may occur even though it is not intended. For example, if the client discloses communications had with the attorney to others (such as by telling friends or posting information on the Internet), confidentiality will be lost and a waiver will occur. Once the privilege has been waived, it is treated as a waiver for all purposes. At that point, the opposing party can force the attorney or client to share the previously private communications that might damage the case.

Since it may be difficult to discern what information about your case is confidential, it is best to not discuss the matter at all with others. Mum's the word!

Take my advice; get professional help.

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Mar 22, 2007

Alert: Photo Contest Grabs Your Copyright

No one likes to read the small print, but it can be important. Check the rules of this photo contest that state:

The participant . . . shall accept that by submitting the images he/she waives all claim to copyright and any consequential rights, including moral rights.

This statement tranfers your copyright just by submitting your photo, regardless of whether you win a prize.

Thanks to John Williams for submitting this alert.

Mar 17, 2007

Photopreneur Interviews PhotoAttorney

Thanks to Dean of The Photopreneur Blog who posted his interview of PhotoAttorney.

Mar 16, 2007

Registering Your Copyrights: Do It Right The First Time

While registering photos with the U.S. Copyright Office is not difficult, it can be time consuming if you need to register several years' worth of photos. In those cases, you may be tempted to take some short cuts. But don't.

If you register your photos incorrectly, especially by blatantly recording the wrong publication date or by mixing your published and unpublished photos on one form, a court may deem your registration to be invalid as if you never registered at all. While minor errors won't affect your registration, the first thing a defendant infringer will do is to try to void it. Don't waste your time and money registering your photos if you won't do it right!

One way to start registering a large collection is to register your most recent shoot of unpublished images before your publish any of them or perhaps register all of those shots you have published thus far in 2007. Then go back one calendar year at a time to register other photos as you can. Eat the elephant one bite at a time!

Take my advice; get professional help.

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Mar 14, 2007

Alert: "Photography Not Allowed!"

Thanks to a loyal blog reader who shared these pics of a temple being constructed in an Atlanta suburb. While the property owner can prevent your taking pictures when on the premises, the owner cannot prevent you from shooting the property from a publicly accessible area.

Send in your pics of other attempts to restrict photographers' rights!

Mar 10, 2007

Borrowing Copyrights

(Excerpts from an article posted at The Online Photographer)

David Segal, a writer for the Style section of The Washington Post, recently posted an article/slide show on Slate asking whether photographers can be plagiarists. Legally, the answer is no.

According to the Merriam-Webster Online Dictionary, to "plagiarize" means:

"to steal and pass off (the ideas or words of another) as one's own use (another's production) without crediting the source;" or

"to commit literary theft: present as new and original an idea or product derived from an existing source."

While plagiarizing may lead to a failing grade or a form of humiliation, the legal recourse available to creatives for the theft of their work is found in copyright law.

Some may be surprised to find that the purpose of copyright law is not to protect the work of creatives, but, as stated in Article I, section 8, clause 8, of the United States Constitution, "to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Copyright law attempts to achieve a balance between public interest and the rights of authors/artists so that artists will be encouraged to create and the public will be the ultimate beneficiary. In many ways, the priority leans towards public concerns when there is any conflict in those interests. As a result, the law may not seem fair or just to the copyright owner.

All photographers are inspired by other artists, including photographers. That is how art develops. But when a photograph is so similar to another work that it appears to be the same expression of the idea, it may be difficult to believe that it was an accident. Imitation may be the sincerest form of flattery, but no one is grateful when work is stolen. However, courts don't always find infringements in those cases despite there appearing to be obvious copying to the outsider's eye. For instance, artist Jeff Koons was found to have infringed the German shepherd puppies' picture in Rogers v. Koons but not when Andrea Blanch sued him for a similar appropriation.

Law and ethics don't always take the same path. Does infringement have the same social stigma as plagiarism? It might if photographers continue to educate others about their rights. While photographers may not have the same social sword as authors do to fight plagiarism, at least we sometimes have a mightier legal sword to battle infringements.

Take my advice; get professional help.

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Mar 8, 2007

Easier, Cheaper, and Better Copyright Registration

The U.S. Copyright Office is proposing a reduced fee of $35 for an electronic filing of a basic copyright registration to begin July 1, 2007. This lower fee will provide an incentive for applicants to use the new "eCO system" (electronic Copyright Office) that will improve the timeliness of the Office's service to the public. The current $45 fee for a paper application will be retained. Stay tuned for updates!

Mar 6, 2007

PhotoAttorney LIVE!

New speaking engagement added! Please join me at the Photo Road Show in Daytona, FL, Sat., June 2, 2007, at the Hilton Ocean Walk Hotel. For those of you attending The 2007 FPP Florida School of Photography from June 3-7, come a day early to join us!

Reminder! I also will be speaking at these upcoming conferences:

ISAP's Annual Symposium
March 15-17, 2007
Pensacola, FL

DWF (Digital Wedding Forum) Convention
March 26-29th
Las Vegas, Nevada

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

I look forward to helping you protect your work!

Mar 5, 2007

Alert: Woman Claims Rights of Privacy Violated

A woman has filed suit in Ohio against Yahoo for using her likeness/image in an email sent to new account holders. She has done some professional modeling so it will be interesting to see if she signed a general model release and whether the Ohio court will recognize it.

Mar 3, 2007

Photographers: Know Your Rights!

The Digital Photography Show has an excellent podcast interview with Bert Krages, Esq., the author of one of the books I recommend, the "Legal Handbook for Photographers." As in his book, Bert talks about photographers' legal rights and liabilities of making images.

Mar 1, 2007

Licensing Your Copyright

(Excerpts from article posted at

Clients often give photographers a license to sign. While it is best to hire an attorney to review it, some photographers don't want to dispute the terms of the license for fear of losing the clients or are just happy to be published. But to best protect your work, you should know what you are agreeing to.

Following are some common terms and conditions used in licenses along with a brief explanation of what they mean.

All disputes arising under this Agreement shall be submitted to binding arbitration and settled in accordance with the rules of the American Arbitration Association.

Agreeing to binding arbitration means that you are forfeiting your right to file a lawsuit in a state or federal court of law and your claim will not be decided by a jury of your peers. Instead, you present your case to an arbitrator who will decide your case with no right of appeal.

The pros with arbitration are that the overall litigation costs are less and the case is usually resolved more quickly. Often the arbitrator has special knowledge about the subject as compared to a judge or jury who must be educated on the issues. The cons are that it is usually more expensive initially (the filing fee is usually much higher than to file in a state or federal court and you have to pay at least half of the arbitrator's fee rather than getting a judge or jury at no charge). The damages awarded usually are less (there are no high "runaway/windfall" jury awards).

Be sure that you have input into deciding who the arbitrator is (some organizations retain the right to choose an arbitrator who may be biased towards the organization). The American Arbitration Association also tends to be more expensive than other arbitration groups who may conduct arbitrations by AAA rules.

This Agreement constitutes the entire understanding between the parties.

Any discussions, agreements, or promises made by the licensing party are not binding. Instead, only those terms and conditions that are contained specifically in the license/contract are considered to be part of the agreement. For example, you can not later sue the licensee for its promise in an email or stated in person to give you a photo credit if it was not in the contract.

The Agreement's terms can be modified only by an instrument in writing signed by both parties.

After you sign the contract, you may modify it if both of the parties (you and the licensee) agree in writing to change the contract. It is, in effect, a new contract. Both are binding except for the new terms of the second contract that conflict with the first contract.

The laws of [state] govern this Agreement. By signing this Agreement, Photographer consents to personal jurisdiction by and venue in the state and federal courts of the [state].

Here you are agreeing to be subject to a lawsuit in the state listed in the Agreement, which usually is where the licensee is. If, for example, you live in Florida and the licensee, who lives in Oregon, sues you there for breaching the agreement, you will have a long way to travel to defend a suit. You also likely will be unable to sue the licensee in Florida (unless you can show the licensee has a presence in Florida) for breaching the contract.

Photographer and [client] intend this to be a contract for services and each considers the products and results of the services to be rendered by Photographer hereunder (the "Work") to be a work made for hire.

A photographer owns the copyright for images that they create, unless the creation of those images falls into the "work-for-hire" category. A work-for-hire relationship is created in two situations: (1) the photographer is an employee hired to photograph for the employer - an example would be a photojournalist who is an employee of a newspaper; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually. Work-for-hire provisions are usually negotiable and monetary considerations should be included when photographers are asked to give up their copyrights.

Either of the following in similar form:

I hereby sell, assign and transfer in perpetuity to [client] all world-wide rights, title, and interest in all photographs, copyrights (including the right to register the copyright and any renewals or reversions thereof) derivative works, and any other material and/or intellectual property embodied in the material created.

[Client] has exclusive worldwide rights to distribute, sell, and/or license distribution of the Submission, or excerpts of the Submission, or derivatives of the Submission.

In the photography industry, these are known as "rights grabs." Either of these phrases will, in effect, transfer your copyrights to the other party. Be sure that you intend to do so and get paid accordingly.

Ignorance of the law is no excuse. Once you have taken steps to share your work with the world, take those steps necessary to protect it.

Take my advice; get professional help.

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