Photo Attorney

Jul 30, 2007

Copyright Office to Provide Better Search System

News from the U.S. Copyright Office:

In mid August, the Copyright Office will launch a powerful new records search system that accesses more than 20 million digital records of registrations and recorded documents from 1978 to the present. The new system allows searching by title, name, keyword, and registration or document number. Through a command keyword search, elements of any or all fields can be combined to search the records.

Users can also search by type of work, such as sound recordings, dramas, motion pictures, visual materials, or preregistrations. The search method combines three separate databases that previously permitted only limited searching. The search tool uses Voyager software, the same system used by the Library of Congress Online Catalog.

The Copyright Office also has a tutorial on searching with the new system.

Just another reason to register your copyrights and to title the registrations so that potential users can find you!

Jul 29, 2007

Taking and Posting Photos of Children Is Not a Crime

Many photographers take and post photos of people on their websites and then wonder whether they need a model release, especially for children. But you don't for editorial uses, even when the purpose of the photos is clearly wrong.

This fact is a bit difficult to face in one extreme situation. Jack McClellan, a self-described pedophile, has had web sites detailing how and where he likes to troll for children. As reported by the New York Times, "he had been posting nonsexual pictures of children on a Web site intended to promote the acceptance of pedophiles, and to direct other pedophiles to events and places where children tended to gather."

Parents are understandably upset and want Mr. McClellan locked up. But he's not done anything wrong, as far as anyone can tell. According to the article, "while posting pictures of children in sexual situations is a felony, posting them fully clothed in everyday situations is not, even in the context of sexualizing them by proxy, so to speak, First Amendment scholars said."

Eugene Volokh, a law professor and First Amendment expert at UCLA explains: "The general rule is pictures of people in public are free for people to publish. Now if it is without permission and the person is a child and he suggests the children are sexual targets, you can imagine a court saying this is a new First Amendment exception. But it would be an uphill battle."

Unfortunately, this situation makes it more difficult for photographers with an unadulterated intent to photograph children. People already are spooked by someone with a camera, fearing terrorism. Popular Photography has a great article about photographers being hassled for taking pictures of public places (except for the article's statement: "You can find out if something's been copyrighted or trademarked at or" You don't have to register to have a copyright or a trademark and the Copyright Office has not uploaded all registered copyrights to their online database, so checking those lists is not all-inclusive). This example adds pedophile to the list of concerns for those of us with a SLR in our hands.

Thanks to Dan Heller for submitting this topic.

Take my advice; get professional help.
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Jul 27, 2007

Update: Easy Way to Fight NYC's Proposal

You now can sign a petition to oppose the NYC proposed photo permit.

Or you can voice your concerns directly to:

Julianne Cho
Associate Commissioner
Mayor's Office of Film, Theatre & Broadcasting
1697 Broadway
New York, NY 10019 gov
ph: 212.489.6710
fax: 212.307.6237

The deadline to respond is August 3! Spread the word!

Jul 22, 2007

Alert: Help Fight Bill That Will Hurt Photographers

The ASMP has issued a call to action on a proposed bill that would make California's right of publicity law retroactive to 1915.

This one is similar to the bill that was recently proposed (but was unsuccessful) in NY. Amazingly, California Senator Kuehl has revised a stem cell research bill to rush this legislation that will require photographers to obtain permission to use a deceased person's name or likeness from the estate's beneficiaries (even if you didn't need it before).

The ASMP has instructions on what you can do to fight the passage of this bill that will affect all photographers, not just those in California.

Jul 20, 2007

Update: Still Time to Comment on Proposed NYC Photo Permit

New York City has extended the time until August 3 for comments on the proposed photo permit as previously reported here.

Jul 18, 2007

Report: Photographer Wins Infringement Case

PDN is reporting that a photographer was awarded $15,000 per photo plus attorneys' fees and costs (total $64,000) for copyright infringement. Note that he had registered the photos and was thus eligible for statutory damages.

Alert: "Pay" to Shoot at Sports Events

Sports leagues that issue press passes are now starting to impose rigorous rules on journalists, including photographers, who cover their events. The Wall Street Journal is reporting that some leagues are even claiming copyright or asserting an unlimited license on the photos. The only good news is that some journalists are standing up for their rights and the organizations are backing down.

Thanks to Ed Muholland at for submitting this alert.

Jul 15, 2007

Uh, I thought YOU got the release . . .

Photographers often take photos of people. If a photo is used editorially, then no model release is needed. If used commercially, then permission is needed to use the person's right of publicity.

A Flickr group is reporting that a photo posted on Flickr was used for an ad campaign by Virgin Mobile in Australia. The photograph allegedly was posted under a Creative Commons license that may not have allowed commercial uses so Virgin may be liable for copyright infringement. The model and her brother are claiming that the model never gave permission to use the photo for the campaign so Virgin may be liable for violating her right of publicity.

In the U.S., rights of publicity are determined by state laws, so they vary slightly among the states. The specific facts of the case will determine whether jurisdiction for a lawsuit for violating the model's right of publicity (also called "misappropriation") is in the model's state, Australia, or elsewhere.

There is some question as to whether the photographer would be liable for not having a model release. No, not unless the photographer misrepresents having a release, agrees to indemnify the user for claims, or causes the photo to be used commercially. Seems here that the photographer is off the hook, but Virgin may not be.

Thanks to Adam Nollmeyer for submitting this topic.

Take my advice; get professional help.

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Jul 11, 2007

Strength in Numbers

The Copyright Alliance is a "non-profit, non-partisan educational organization dedicated to the value of copyright as an agent for creativity, jobs and growth." It is working to protect our rights as creators. For example, the Alliance recently sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid to emphasize the importance of the copyright industries in creating good paying jobs.

Its members include a variety of groups affected by copyright law from the ASMP to the Walt Disney Company. But you can join this great effort, too. It's another good and easy step towards protecting your work.

Take my advice; get professional help.

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Jul 4, 2007

Alert - NYC May Seek Permits for Public Photography

The New York City's Mayor's Office of Film, Theater and Broadcasting is considering a rule that would require any group of two or more people who want to use a camera in a single public location for more than a half hour or five or more people who plan to use a tripod in a public location for more than 10 minutes, including the time it takes to set up the equipment, to get a city permit and insurance. See the NY Times article for more information.

These kinds of vague laws allow Barney Fife with his single bullet to bully photographers. Let the Mayor know that you oppose this proposal:

Mayor Michael R. Bloomberg
City Hall
New York, NY 10007
PHONE 311 (or 212-NEW-YORK outside NYC)
FAX (212) 788-8123

Thanks to Susan Bailey for submitting this alert topic.

Jul 3, 2007

Watermarks Can Be Music To Your Ears

While many photographers place watermarks including their name and/or the copyright notice on their images to prevent someone from infringing them, it's fairly easy to crop or clone over the mark. Fortunately, the DMCA section of the Copyright Act provides an even better reason to use watermarks.

Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000 in addition to attorneys' fees and any damages for the infringement. The pertinent part of the statute is included below:

Section 1202. Integrity of copyright management information . . .


No person shall, without the authority of the copyright owner or the law:
(1) intentionally remove or alter any copyright management information . . .
(3) distribute . . . copies of works . . . knowing that copyright management information has been removed or altered without authority of the copyright owner . . . knowing . . . that it will . . . conceal an infringement of any right under this title.

(c) DEFINITION. . . . "[C]opyright management information" means any of the following information conveyed in connection with copies . . . of a work . . . or displays of a work, including in digital form . . . :
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright. . . .

Section 1203. Civil remedies

(b) POWERS OF THE COURT. In an action brought under subsection (a), the court . . .
(3) may award damages under subsection (c);
(4) in its discretion may allow the recovery of costs by or against any party . . . ; [and]
(5) in its discretion may award reasonable attorney's fees to the prevailing party . . .

(c) AWARD OF DAMAGES. (1) IN GENERAL. . . . [a] person committing a violation of . . . 1202 is liable for either
(A) the actual damages and any additional profits of the violator . . . or
(B) statutory damages, as provided in paragraph (3).

(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.

And the even better news? You don't have to have registered your photo in advance to recover under this statute.

Take my advice; get professional help.

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