Photo Attorney

PhotoShelter has now posted the video from the Atlanta Town Hall meeting where I was joined by John Harrington, Rich Wakefield, Bryan Meltz, David Walter Banks, Bill Frakes and Meagan Ziegler-Haynes in a discussion moderated by Allen Murabayashi.

Lloyd Shugard was awarded $1.3 million in a copyright infringement case yesterday, finding Propet USA, Inc., guilty of willful infringement, willful removal of his copyright management information (under the DMCA), and for willful failure to return his slides. Here's the Jury Verdict form. More information is available on his attorney's website. Hooray!!!

A fan at the Redskins football game had his camera confiscated by security guards because it wasn't a "tiny one," as reported by washingtonpost.com. As a follow up to the story, Redskins senior VP Karl Swanson now has admitted that "[S]tadium policy clearly states that still cameras are allowed. Video cameras are not. There is no distinction between a 'professional' and 'amateur' camera. The security guards were in error. This is a perplexing one, which never should have happened."

If you missed the PhotoShelter Town Hall Meetings where the discussions included copyright and other business issues of photography, check out the video from New York's roundtable. During the Atlanta Town Hall roundtable, Allen Murabayashi asked me, "What is the number one mistake photographers make?" My answer: "Not registering their images."

John Harrington, a D.C.-based photographer where the U.S. Copyright Office is located, has posted on his blog photos and an explanation of how your copyright registrations are handled.

As a follow up to my July 15, 2007, blog, the attorney for the 16 year-old in the photograph explained his client's position in an interview with CNN.

Some have questioned why the attorney is not talking about copyright infringement. However, the copyright infringement claim belongs to the photographer, not the girl in the picture, so the attorney may not be representing the photographer. Further, photos on Flickr are usually subject to a Creative Commons license and the license may have allowed the use of the photo as was done. But the misappropriation claim (the violation of the model's right of privacy) can be worth a lot of money, sometimes even more than copyright infringement claims.

It is disappointing that the attorney's response to this case was to suggest that people put fewer pics online instead of educating the public about what can be done with photos. Guess that's our job as photographers.

Understanding copyright law and registering your images is vital to protecting your work. Fortunately, there are many great resources to help you.

- John Harrington, the experienced and prolific photographer based in D.C., has written a great book on photography business, Best Business Practices for Photographers. As part of the book, he has a sample Form VA to show how he organizes and registers his copyrights.

- Nancy Wolff, counsel to the Picture Archive Council of America (PACA), has prepared a powerpoint presentation on the basics of copyright law.

- Columbia Law School has launched a web site to educate artists on how to retain control of and manage their copyrights.

Not to decide to protect your work is to decide not to protect your work!

Some people use your photographs for educational or newsworthy purposes without authorization and claim it as "fair use." The doctrine of fair use means that copying will not infringe a copyright when it is "for purposes such as criticism, comment, news reporting, teaching, scholarship or research." That might make you think that schools and newspapers can use your photos at will. But it's not that simple.

Four factors are considered to determine whether the use of a photograph qualifies for fair use:

- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or for educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the copyrighted material that is used; and
- The effect of the use upon the potential market for or value of the copyrighted work.

All four (as indicated by the "and" before the last factor) are considered by a court to determine whether a use is fair.

In July, a federal court in Massachusetts determined that CBS news' use of Christopher Fitzgerald's photograph of Stephen Flemmi being arrested was not fair use. A summary and analysis of the case written by Fitzgerald's attorneys is found at www.nppa.org.

However, some courts have found fair use when a photograph has been used by news organizations. See my October 25, 2006, blog on Chris Harris' case for an example.

It is always a judgment call until a court gives a final ruling whether the use of a photograph is fair. But if you find your photo has been used without your permission and the defense is "fair use," don't be too quick to accept that answer.

Take my advice; get professional help.
PhotoAttorney®

Technorati Tags: copyright law, photography business

An infringement found through PicScout image recognition technology has resulted in a copyright infringement award of statutory damages, attorney's fees and costs, totaling $46,816.91, as reported by Nancy E. Wolff on Stock Asylum. Hooray!

Many photographers use trademarks or servicemarks to identify their products or services. But when should you use the ® as opposed to the ™?

The ® only may be used, and should be used, adjacent to any trademark you own that is registered and designates the source of certain products or services. For example, "Photo Attorney" is a federally registered servicemark, so it is properly shown as Photo Attorney®. A registered mark only may be used on and/or in connection with goods and services covered by the applicable registration, so Photo Attorney® can be used only to designate legal services from its source, The Law Office of Carolyn E. Wright, LLC. It thus should not be used to designate other services, such as photographic services, even when they are from the same source.

For an unregistered trademark, or for a registered mark used on or in connection with a good or service not covered by the registration, you may use the ™ symbol in close proximity to the mark. If you have a trademark or servicemark that you are using to identify your goods or services but have not yet registered the mark, you may use the ™ to advise others that you are making a claim for that mark.

Take my advice; get professional help.
PhotoAttorney®

Technorati Tags: trademark law, photography business

As an outdoor photographer and enthusiast, I've purchased a lot of goods from REI and have been a member since the 70s. It's therefore disappointing to receive an email from REI requesting photos from its members to use their photos for free on the web and in printed matter. And, you get to indemnify REI for any claims against it for its use of the photos and agree to limit your damages against REI to $50! Here's the overbearing language:

1. I irrevocably grant to Recreational Equipment, Inc. . . . in perpetuity, for no additional consideration, to use the photographs or pictures . . . an unlimited number of times in any manner REI deems . . . without restriction as to changes or alterations, or reproductions . . . . I also consent to the use of printed matter in conjunction therewith.
2. I understand that upon my submission and/or delivery of any Photos to REI, the Photos may be used by REI for any purpose whatsoever. . . .
3. To the fullest extent allowed by law I agree to release, discharge, indemnify and hold harmless REI . . . from any liability, claim, damage, judgment, cost, loss, expense (including reasonable attorneys' fees), by virtue of any publication or use of the Photos as previously described. I agree that in the event of a dispute arising out of the use of the Photos, my damages shall not exceed Fifty Dollars ($50.00) and in no instance shall I be entitled to seek an injunction against REI's use of the Photos. . . .

And if you have someone in the photo, the person has to agree to:

. . . grant Recreational Equipment, Inc . . . the absolute and irrevocable right and permission to copyright and use, re-use, publish, and republish at any time any images, photographic portraits or pictures of me or in which I may be included . . . for all purposes REI deems appropriate including, without limitation, for promotional and publicity purposes. As between me and REI, REI shall have the sole ownership in the copyrights in any Photographs of me created under this Release. . . .

It's amazing that REI thinks that the person in the photo can transfer the photo's copyright. This entire mess is enough to make someone stay inside.

PhotoShelter City Tour
Mon., Sept. 17, 2007

APA Atlanta
Wed., Sept. 19, 2007 7-9 pm

Hope to see you there!

A photographer was questioned and ordered by security guards to delete her photos of the outside of a VA Hospital, as reported by the Post-Standard. She was standing on the sidewalk when taking the photos.

While taking photos inside a hospital can be restricted due to privacy laws (as regulated by HIPAA) and trespassing, there is no law against taking photos of the building from a public place. The photographer was taken to the security office and questioned. Depending on the facts and circumstances, this type of event could constitute false imprisonment.

At least the hospital spokesman admitted that forcing her to delete the photos was "inappropriate." Duh.

My photo entitled "Grizzly Chase" has been selected as the Showcase image for the front page of the NANPA website today (also shown here). If you'd like to take photos like this one, join me when we return to Alaska in 2008.

Scott Kelby, the editor and publisher of Photoshop User Magazine and President of the National Association of Photoshop Professionals (NAPP), reported today (see his paragraph on "National Coalition Against Sharp Photos") that he was admonished more than once while attempting to photograph with a tripod in Washington D.C. He may have been the victim of a strict and incorrect interpretation of the permit requirement for national parks (see my May 3, 2006, blog).

As discussed in my earlier blogs here and here, using a copyright notice will help to protect your work and may lead to enhanced damages for infringement. Also as noted before, the "c" in parentheses does not meet the copyright notice requirements. But because computers can only understand numbers, you have to use ASCII text (the "American Standard Code for Information Interchange") to designate certain text files online or on your computer.

To get the "c in the circle" to display on your computer or website, use HTML code "!" or "&copy" in browser view so it will look like this: © 2007 Carolyn E. Wright

For a trademark symbol on a web page, you must use the ASCII Character Code: "™" or, if your trademark is registered: "®" or "®" (browser) to look like this: PhotoAttorney®

To get the copyright symbol to display when typing text documents, you can either insert the symbol using the software program options or:

For PC -
1. Hold the Ctrl and Alt keys at the same time and press c (Ctrl+Alt+c), or
2. Hold the Alt key and type 0169 on the number pad (Alt+0169)

For Mac -
Hold down the Option key and press 'g'(Option+g)

For the trademark symbol when your trademark is not registered, press:
Ctrl+Alt+t or type Alt + 0174 on a PC; or
Option+2 on a Mac.

For the registered trademark symbol, type:
Alt + 0153 or Ctrl+Alt+r on a PC; or
Option+R on a Mac.

These are easy additional steps you can take to protect your work.

Take my advice; get professional help.
PhotoAttorney®

Technorati Tags: copyright law, photography business

The story continues for Greenberg v. NGS. The U.S. Court of Appeals for the 11th Circuit will reconsider its decision to vacate a $400,000 award for Greenberg for copyright infringement by National Geographic Society. Greenberg requested that the court hear the matter "en banc," where all of the judges of the 11th Circuit (instead of the original panel of 3 judges) weigh in on the ultimate decision, and the court agreed. This happens usually because the case concerns a matter of exceptional public importance or the panel's decision appears to conflict with a prior decision of the court. Review my June 16, 2007, and June 25, 2005, blogs for background of the case.

Photographers often come under suspicion for the mere act of taking pictures. John Williams of Insomniac Studios has designed a t-shirt that might make others think about their conclusions. Purchase your copy on Cafe Press.