Photo Attorney

Apr 30, 2007

Upcoming and New Speaking Engagements!

Please join me for these events . . .

CNPA's Annual Meeting
May 17-20, 2007

Boone, NC

Photo Road Show
Sat., June 2, 2007
Hilton Ocean Walk Hotel
Daytona, FL

Just added!

APA Atlanta
Wed., Sept. 19, 2007, 7-9 p.m.
Atlanta, GA

Looking forward to meeting you in person!

Photo by David Small (taken at NANPA presentation)

Apr 28, 2007

Five Very Dangerous Words

Photographers are entering into contracts more often these days, including for photo contests. Beware when contract clauses include a phrase that gives the other party more than you may realize.

Take, for example, the Shell Wildlife Photographer of the Year Photo Contest. Rule #8 states, in part:

. . . By entering your images into the competition, you grant to the Natural History Museum a non-exclusive licence to reproduce the images for any purpose in connection with the competition including, but not limited to, the following purposes:

-- judging the competition
-- display at the exhibition of the winning entries held at the Natural History Museum and within the UK and subsequent international tours
-- inclusion within the Wildlife Photographer of the Year book and magazine or similar
-- inclusion within promotion of the competition and exhibition organised by BBC Wildlife Magazine
-- inclusion (if selected as one of the promotional images) within the Natural History Museum's marketing and promotional materials (including press packs) for the exhibition or touring exhibition
-- use on competition- and exhibition-related merchandise to be sold by the Natural History Museum

As a prudent photographer, you will examine closely the list of granted uses for your photos. But, in the process, you can easily skip over those words, "including, but not limited to." What the phrase does to the list is make it moot. The clause in effect states that "you grant . . . a non-exclusive license to reproduce the images for any purpose . . . ." To the contest's credit, the usage is limited to purposes "in connection with the competition . . . ."

After recently settling an infringement claim on behalf of a client, I battled with the infringer's attorney who consistently tried to insert "including, but not limited to" clauses in the release so that unintended potential claims and/or photos would be part of the settlement. The phrase is usually a ploy to overcome specific agreements. Don't be suckered by it.

Take my advice; get professional help.

Thanks to Mary Ann Melton for submitting this notice.

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Apr 23, 2007

Model Release Not Needed for GGW Video

Photographers persistently are concerned about whether they need a model release to use the photo of a person (rightly so). It's always best to have a model release, of course, but whether it's legally required is determined by each state's law on the right of publicity.

According to the law in Florida, the right of publicity involves the commercial appropriation of someone's name or likeness. Violations occur when photographs of people are used in advertisements or trade without permission.

Florida statute section 540.08 on "unauthorized publication of name or likeness" provides, in pertinent part:

(1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by: (a) such person;
. . .

(3) The provisions of this section shall not apply to:

(a) The publication, printing, display, or use of the name or likeness of any person in any newspaper, magazine, book, news broadcast or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes.

A few years back, a Florida court applied the Florida statute to a situation that may be helpful to understand what it means. In Lane v. MRA Holdings, LLC, 242 F.Supp.2d 1205 (M.D.Fla.2002), the Middle District of Florida considered whether Florida section 540.08 was violated by the defendants' display of the plaintiff exposing her breasts in a "Girls Gone Wild" video. The plaintiff had consented to being videotaped (thus not constituting an invasion of privacy) but was allegedly unaware that the video would be sold to the public.

The court rejected the plaintiff's section 540.08 argument, reasoning as follows:

Under Fla. Stat. Section 540.08, the terms "trade," "commercial," or "advertising purpose" mean using a person's name or likeness to directly promote a product or service.

As a matter of law, this Court finds that Lane's image and likeness were not used to promote a product or service. In coming to this conclusion, this Court relies on section 47 of the Restatement (Third) of Unfair Competition which defines "the purposes of trade" as follows:

The names, likeness, and other indicia of a person's identity are used "for the purposes of trade" . . . if they are used in advertising the user's goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user. However, use "for the purpose of trade" does not ordinarily include the use of a person's identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising incidental to such uses.

In this case, it is irrefutable that the Girls Gone Wild video is an expressive work created solely for entertainment purposes. Similarly, it is also irrefutable that while Lane's image and likeness were used to sell copies of Girls Gone Wild, her image and likeness were never associated with a product or service unrelated to that work. Indeed, in both the video and its commercial advertisements, Lane is never shown endorsing or promoting a product, but rather, as part of an expressive work in which she voluntarily participated. [Citations omitted.]

. . . [C]ommon usage of the term "commercial" in the commercial misappropriation and right of publicity context is indeed limited to the promotion of a product or service . . . , but . . . such works [also] should be protected by the First Amendment. [Citations omitted.]

In sum, the court found that no model release was needed to include the plaintiff's image in the "Girls Gone Wild" video as long as her image/likeness was not used to promote another product or service. While each circumstance is different, this case does a good job of explaining when a model release is needed in Florida.

Take my advice; get professional help.

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Apr 17, 2007

Alert: Photographer's Equipment Confiscated During VA Tech Crisis

While the real story is a tragedy, a side note is that the police detained a VA Tech student photographer who was documenting the events for the school's newspaper. Although he was released, his camera equipment has not been returned - a violation of search and seizure laws.

Thanks to Jamie De Pould for submitting this alert.

Apr 16, 2007

"You Don't Have A Valid Claim!"

Many photographers worry about being sued for claims (i.e., property releases, trademarks in photos, etc.) that are not the law and have not been recognized by the courts. This Coke ad shows a real practicing attorney being "punked" about a frivolous claim. Her response is: "You can bring a suit [but] there's no claim!"

There are plenty of concerns for photographers - copyright infringement (have you registered your photos?); liability insurance in case someone gets hurt in your studio; paying sales tax on your photography income; disability insurance; retirement preparation; backing up your digital files . . .

Yes, you can get sued for anything. But if you take time to prepare for and educate yourself about the accepted claims, you will have less worries about the frivolous ones.

Take my advice; get professional help.

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Apr 7, 2007

Alert: NG Gets Free License of Your Copyright

Many photographers dream of being published in National Geographic, so you may be tempted to enter NG's "Your Shot" photo contest. When you do, however, the rules state that you give NG:
a royalty-free, worldwide, perpetual license to display, distribute and reproduce the Photograph, in whole or in part, in any medium now existing or subsequently developed for editorial purposes without further review or participation from you.

At least NG will have only editorial rights to your copyright, but readers of my blog know that can go a long way.

Thanks to Sam D'Amico for submitting this alert.

Apr 4, 2007

Coming Soon - Electronic Copyright Registration!

The U.S. Copyright Office has officially announced that this summer (2007), it will offer the option to file a copyright registration online through its website.

The advantages include:

Lower filing fee of $35 for a basic claim (for online filings only)
Fastest processing time
Earlier effective date of registration
Online status tracking
Payment online by credit card or Copyright Office deposit account

The Copyright Office will continue to offer the option to complete an application online, print it, and mail it to the Copyright Office. Current forms will be replaced by new forms on or after July 1. With new scanning software, the Office will be able to process these forms more efficiently and faster. Note that the current $45 fee for a paper application will be retained.



What the

Apr 3, 2007

Alert: Smirnoff "Shares" Your Copyright

While you get to "retain" your copyright in this photo contest, you will lose all control of what Smirnoff does with it when you enter. The "Terms and Conditions" state:

". . . by entering all entrants grant 'Diageo' a perpetual worldwide royalty-free licence to publish and use each entry in any and all media (including print and online) for publicity and news purposes. Entrants unconditionally and irrevocably waive all moral rights and all rights to which they may now (or at any future time) be entitled to object to derogatory treatment under the Copyright, Designs and Patents Act 1988 as amended from time to time (and under all similar legislation from time to time in force anywhere in the world)."

These days, the small print can mean big consequences.

Thanks to Rene Paik for submitting this alert.