Photo Attorney

May 31, 2007

Bonus Round for Copyright Infringements

Some photographers think it is unfair that they must register their photos with the U.S. Copyright Office to be eligible for statutory damages when infringed. But when analyzed in relation to damages awarded in other lawsuits, the result is that statutory damages are a bonus for which photographers should be appreciative!

When you timely register your copyrights (at least before they are infringed or within 3 months of being published), you may elect to seek statutory damages instead of actual damages. Actual damages usually are the standard license fee plus profits of the infringer from the infringement, but only if the court thinks your proof of those profits are not too speculative. Statutory awards can range from $750 to $30,000 per infringement based upon what the court believes is necessary to deter the infringer from future infringe­ments. They can be as high as $150,000 if the infringement was willful or intentional. Statutory fees usually amount to much more than actual profits so being able to choose between the two is optimal.

In other lawsuits, such as ones for car accidents or for breach of contract, you are usually eligible only for "compensatory" damages. Those are what will compensate you for your loss. For example, if a bride cancels her wedding, you are paid what you would have been if you had shot the wedding. You don't get more than the contract price. If you are in a car accident, you will recover your medical expenses, your car repairs, and possibly recompense for your pain and suffering. Seldom will you be allowed to recover additional "enhanced" or "punitive" damages unless the acts of the defendant are reprehensible.

In sum, compensatory damages in other lawsuits are roughly equal to actual damages for copyright infringement. You are being compensated for what you should have been paid. So when photographers register their photos and have statutory damages as an option, we're actually getting a bonus! Register your photos today!

Take my advice; get professional help.
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May 24, 2007

Does Having The Negative Give You Copyright Power?

In the days of film, photographers were hesitant to give up their negatives or chrome because they could not then easily reproduce their work. Now that digital has come along, photographers can give clients a copy of the file and retain a file for their future use. Photographers understand that providing a digital file does not transfer the copyright. It's no different when negatives change hands, but you may have to convince others about that.

The Online Photographer recently ran a post written by Bob Shell about Getty claiming copyright to National Archives Images. Bob reported that Getty bought thousands of negatives from the U.S. National Archives to sell through its stock agency and also claims copyright on them. Most of these images were taken by government employees and are thus in the public domain (but see my blog on Government Works Exception). The question is whether Getty can legally claim copyright on the images. Probably not. (Note: if Getty had made derivative works from the public domain images, then it could protect only the new, copyrighted material of the derivative work. Since it appears that Getty has only scanned the images, there is no new copyright protection in the copy).

Apparently Getty is not alone. The Smithsonian has been trying to control the use of its materials, despite their being in the public domain. The nonprofit group, Public.Resource.Org, is challenging the Smithsonian's claims to copyright and other rights on its web site ("even in the absence of copyright, Smithsonian still reserves all rights to image use").

This has sparked various legal discussions and analysis. There may be a difference in these cases because Getty is a private entity and the Smithsonian is public. For those of you interested in the legal arguments, check out the Madisonian blog, the ArtLaw blog, the Library Law blog, and the Washington Post column.

We must remember that copyright is an intangible intellectual property. Negatives and chromes are tangible. In sum, it appears that while Getty may be able to stop others from the right to scan the negatives it bought, it cannot prevent others from reproducing the images if obtained from other sources and it may not even be able to stop the distribution of copies from Getty's files once the buyer has paid for Getty's "location and scanning" services.

Take my advice; get professional help.

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May 16, 2007

New Bill Seeks Tax Deduction for Fair Market Value of Photos

As previously discussed, federal tax laws generally do not allow photographers to deduct the fair market value of their photos donated to charities. The law was changed in 1969 to limit the deductions to the cost of materials. But there is a glimmer of hope for a change.

Known as the Artist-Museum Partnership Act, a bill has been introduced by Senator Patrick Leahy in Congress that would allow artists, including photographers, to deduct the fair market value of their works from their taxes when donated to museums and libraries. More information about the bill is available here. Unfortunately, the bill has been before Congress fives times before -- the Senate gave approval every time, but it was stopped by the House of Representatives.

Certainly, photographers would get greater benefit if the legislation was expanded to include donations to all organizations eligible to receive tax-deductible charitable contributions rather than just libraries and museums. But at least this is a start in the right direction.

Let your representatives know that you support this bill. You can identify your representative by entering your zip code here.

Take my advice; get professional help.

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May 9, 2007

Cool Tool to Learn Copyright Basics

Lionel Sobel, Southwestern University School of Law Professor and Editor of the Entertainment Law Reporter, has created an fun decision tree tool called the "Copyright Navigator" to learn copyright basics. Check it out!

May 5, 2007

Photographer Gets Just Award and Reward

Photographers often tolerate infringements and other abuses from major clients for fear that the possible loss of work will be greater than the recovery for complaining. But, for one photographer, his claims paid off - big time.

Chase Jarvis is a professional photographer who licensed several thousand shots over three years to K2, the outdoor sporting goods manufacturer. After their business relationship soured, Jarvis sued K2, alleging that K2 had infringed his copyrights, lost some of his slides, and repeatedly failed to give him photo credits. The trial court agreed that K2 was liable and awarded Jarvis: $199,000 for 396 unreturned slides ($500 each for the 395 unidentified slides and $1,500 for one slide that was created for K2 Bike); $11,400 for 105 failures to give Jarvis a photo credit and one mis-credit (based on a rate of $50 per failure for online use, $200 per failure for print ads, and $300 per failure for media use); and $40,107 for 58 infringements of Jarvis' copyrights (based largely on a fair market value of $461 each for images used online). Total: $250,507.00 and there's more to come.

However, the court held that 24 of Jarvis' images contained in four K2 collage advertisements that combined Jarvis' images with other images and graphics were not infringed because the ads were covered by the collective works privilege of 17 U.S.C. section 201(c). Jarvis appealed the damages awards and the court's ruling as to the collage ads' privileged status.

On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the four collage ads were all derivative rather than collective works. Accordingly, when K2 scanned and placed the ads online after the usage period specified in the 2001 License Agreement had terminated, the collective works privilege did not rescue K2 from infringement.

The full court opinion is worth reading, especially with respect to the calculation of actual damages for infringements, the importance of written contracts, the validity of delivery memos, and, most importantly, what can happen when photographers stand up for their rights.

Take my advice; get professional help.

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