Photo Attorney

Jun 24, 2007

Alert - Another Bill Seeks to Reduce Photographer's Rights

The Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (a.k.a. "The Boucher bill" or the "Fair Use Act") is another attempt to impinge on photographer's rights. Introduced earlier this year, it will shift the burden of proof to the photographer to recover statutory damages for secondary infringement (such as when the photo processor scans a professional photographer's photo at a customer's request). The pertinent section reads:
Section 504(c)(2) of title 17, United States Code, is amended by adding at the end the following: `The court shall remit statutory damages for secondary infringement, except in a case in which the copyright owner sustains the burden of proving, and the court finds, that the act or acts constituting such secondary infringement were done under circumstances in which no reasonable person could have believed such conduct to be lawful.'

If passed, the photographer will have to prove that the secondary infringer had knowledge that the act was unlawful.

It is difficult to see how the bill "promote[s] innovation," "encourage[s] the introduction of new technology," and "protect[s] the fair use rights of consumers" as the bill purports to do.

Thanks to Laurie Dechery of the General Counsel's Office at Lifetouch Inc. for submitting this alert topic.

Jun 22, 2007

Alert: Proposed NY Bill Could Change Right of Publicity Law For Everyone

The ASMP has issued an alert about a bill that has been introduced in the New York state legislature designed to change the rights of publicity law there. But it could affect all photographers, even if you don't live in New York.

The bill amends Section 50 of the NY civil rights law to prohibit the use for advertising purposes of the name, portrait, voice, signature or picture of any deceased person who died within seventy years of January 1, 2008, without having first obtained the written permission of such person's estate. Section 51 also may be amended to provide an equitable action in Supreme Court against any person, firm or corporation that illegally uses a deceased persons name, portrait, picture, etc.

Contact the NY representatives to let them know our concerns about this bill. If you live in New York, contact your state senator and state representative. If you live elsewhere, write to the sponsors of the bill: Assemblywoman Helene Weinstein (email: or fax: 518-455-5752) and Senator Martin Golden (webmail: or fax 518-426-6910).

Photographers must protect their rights or risk losing them.

Jun 16, 2007

Update: Courts Now Agree that NG Publication Does Not Infringe

My June 25, 2005, blog reported on an inconsistency in the circuit courts as to whether National Geographic infringed on photographers' works when it distributed CDs with previously published magazine issues including a search engine and index. The 11th Circuit's previous ruling in Greenberg v. NG clashed with the Supreme Court's subsequent analysis of Section 201(c) of the Copyright Act in Tasini v. New York Times, 533 U.S. 483 (2001). This past week, the 11th Circuit vacated the jury award in Greenberg, finding it overruled by Tasini and putting the circuit courts on the same page. Unfortunately, photographers were the big losers in the end.

Jun 15, 2007

Alert - Photographer Blamed for Showing Pics from Event

Wedding photographers often post images from the ceremony and reception online for guests, relatives, and friends to view and purchase photos. Usually, these don't attract much attention for other lurkers unless they include famous people and/or embarrassing moments. For one wedding photographer, she grabbed both and is getting heat for it - undeservedly so.

Brady Quinn is the first round pick, rookie quarterback for the Cleveland Browns, and former Notre Dame football star. His sister, Laura, married A.J. Hawk, a football player for the Green Bay Packers, last summer. During a party/reception for the wedding party in March, Brady Quinn and others dressed as the Village People and danced.

The photographer, of course, documented the performance. After posting the wedding photos online, the photo of Quinn in his Village People outfit was stolen and circulated throughout the Internet.

A.J. Hawk blamed the photographer. According to the Athens News (a well-written article and analysis), he said,
Yeah, that was just a bad decision on the photographers we chose. It's been an issue a little bit. We had no idea what happened. Some photos got put up without our permission, and I just feel bad for Brady and other people that were at the wedding, because it was just something that the D.J. had set up, I don't know, some 'Village People' thing that they did, and some pictures got out and it's tough. I guess you've got to watch every single thing you do because everything's public now.
(Citation omitted, emphasis added.)

According to the Athens News' article, the photographer's response was to remove the photos, hire an attorney, and put this statement on the website:
We are deeply concerned with the recent press involving A.J. & Laura Hawk's wedding photos that are circulating the internet. Although we had authorization to display these photos pursuant to an agreement, they were stolen from our site and copied without our permission. We respect the privacy of all of our clients and have taken extreme measures to protect our work. Out of respect for the family, we have temporarily removed the wedding photos until this matter is resolved.

Legally, the photographer had every right to post the photos. Since she had permission to be on the premises and was allowed to shoot, she can post the photos as long as they aren't used commercially, such as for advertising and endorsement. Putting photos from an event on the web is usually considered an editorial use, not requiring a model release for the people in the photos. But the bride or groom can't give a model release for wedding guests, anyway.

While photographers may sometimes want to use discretion in selecting photos to post online, most guests would enjoy being reminded of the good time at the reception. You might expect tough football players to have thicker skin.

Thanks to Tim Mulholland for submitting this alert topic.

Take my advice; get professional help.

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Jun 13, 2007

Copyright Office Launches Website for Kids

In this digital age, many don't understand that they are breaking the law when making unauthorized copies of photos. Education is one of the best ways to protect photographer's rights.

To help with this, the Copyright Office has launched an interactive website aimed at middle-school children. The goal of "Taking the Mystery Out of Copyright" is to explain U.S. copyright law. The colorful and animated website includes a set of learning activities and employs a character named Detective Cop E. Wright (no relation, but I love the similarity to my name!), together with other original characters, to help bring a greater understanding of how U.S. copyright law operates. To view the new website, go to and select "Taking the Mystery Out of Copyright."

A few adults could learn from this website, as well.

Take my advice; get professional help.

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Jun 8, 2007

Respecting Other's Copyrights - The Saga Continues

It's sometimes difficult for photographers to take a photograph that doesn't contain another copyrighted work. While it may fall under fair use, photographers must be careful to not infringe another's copyright. But when the photograph is meant to record the entirety of the other creative work, you can get into a bit of trouble.

Take, for example, the photographer who made a book containing photographs of graffiti. The New York Times has the full story. He intended to share these beautiful works with others. He suffered under the misconception that many have - if art is freely accessible to the public, it must be ok to shoot. But it's not. See my prior blog here for another example. Note that not being able to track down the artists is not an excuse.

The publisher has now pulled the book off of the shelf. It is astounding that no one, including the publisher, realized that the photos infringed on the graffiti artist's work. Perhaps this lesson will show how we must learn about respecting copyrights - ours and others.

Take my advice; get professional help.

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