Photo Attorney

Nov 26, 2007

Don't Shoot Here! - Stevie Wonder

The New York Times has reported that Stevie Wonder limited photographer's shooting time to "only the first 5 to 10 seconds of Mr. Wonder's entrance and the first 60 seconds of his first song. Then they had to leave."

Update: More Info on Call for Release of Photographer

PDN Pulse has posted several links and information on the status of Bilal Hussein's case. Of particular interest is the report prepared by attorney Paul Gardephe, who is working on Hussein's behalf and who has active clearances above Top Secret. While cumbersome to read (presumably so that it cannot be copied), it explains in a clear manner the issues presented. Be sure to read page 8.

Nov 25, 2007

Alert: Rights Grabs and Reversal!

1. VH-1 gets your shot in "The Shot" photo contest.

. . . you grant to VH1 . . . , the unqualified, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Content on the Site and any other channels, services, and other distribution platforms, whether currently existing or existing or developed in the future . . . for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to VH1 . . . in our sole discretion.
Thanks to Mike Thompson of Yukon, OK, for submitting this alert.

2. Amateur Photographer Magazine Encourages Contest Rules Change

The Daily Telegraph Adventure Travel Show photography competition rules first provided that the Daily Telegraph could use submissions "in any way that we want, and in any media." After the AP magazine representatives protested, the rules were changed to: "In contributing to the Adventure Travel Show photography competition we may, from time to time, publish and otherwise use your image for event promotion with your permission. Your image will be credited where appropriate."


Nov 22, 2007

The Law for Photographers: Online

The law that affects photographers is derived from both statutes and case law. In the United States, statutes are laws written and enacted by various state or federal legislative bodies. They are interpreted (and can be enforced or invalidated) by courts at the state or federal level, depending on the matter at issue, making "case law."

Copyright statutes in the United States are federal law contained in Title 17 of the United States Code. They are amended occassionally by Congress. Previously, the U.S. Copyright Office posted an older version of Title 17, but has now updated its website to include the current "Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code."

Case law for copyright matters is made by federal courts. In the past, you could only review case law if you perused large bound "reporters" at your library or lawyer's office and could only search it electronically if you paid for an expensive online subscription. Thanks to a joint project of Columbia Law School's Program on Law and Technology and the Silicon Flatirons Program at the University of Colorado Law School, you now can search for free the full text of the U.S. Supreme and Circuit Appeals Courts, as well as the entire U.S. Code, on "AltLaw." AltLaw features:

- Full-text search of the last decade or so of federal appellate and Supreme Court opinions.
- Advanced search options (proximity searching, Boolean, concentration, wildcards, etc.).

Educating yourself is one of the best ways to protect your work. Now, thanks to the Internet, it is much easier.

Take my advice; get professional help.

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Nov 20, 2007

Warning: Photoshop 10.0.1 "Save for Web and Devices" Only Saves XMP Metadata

David Riecks, Chairman of the SAA Imaging Technology Standards Committee, has provided additional information on the new "Save for Web and Devices" in Photoshop. He has granted permission to distribute this message, provided the entire message is included.


As you have likely learned this week, there is a 'point' upgrade that has been released for Photoshop CS3, (version 10.0.1). Among other improvements, the "Save for Web and Devices" feature now places the option to "Include XMP" in the main Save for Web & Devices fly-out menu, where it is more likely to be seen by users. In Photoshop CS2 and CS3, these options to "Include Copyright" and "Include XMP" respectively, were buried several levels down in the flyout and could easily be missed.

For those of you that aren't aware, it is very important to include metadata in your images, especially those you put on the web. At minimum, you should include your contact information, but you may elect to include much more. However, don't let this new option lull you into a false sense of security, as there is a catch that could create problems for your clients and other end users.

With this new version of the "Save For Web And Devices" in Photoshop 10.0.1, if you select the option to "Include XMP" from the fly-out menu, all XMP metadata - including the creator copyright and contact info - is included in the optimized file. This is a step forward, however there are two caveats of which you should be aware if you intend to use this feature to optimize your Jpeg files instead of the standard "Save As" option. First, this option to "Include XMP" is not enabled by default. If you know it's there and select it, it does stay set (which is very nice). However, you do have to find it and set it. Second, as the name implies, this feature does embed XMP information in the file. It does not, however, embed the older legacy IPTC metadata.

Unfortunately, many of your clients may be using applications that aren't yet able to see XMP metadata. For example, Apple's Preview and Spotlight, older versions of Photoshop (users still using Photoshop 6 or earlier), and other file utilities and image databases may only able to read the legacy form of IPTC (sometimes referred to as IIM or IRB). If your client tries to read the metadata in Apple's Preview (or any other legacy IPTC only application) for any images that were saved using the "Save for Web" or "Save for Web And Devices", they would find the fields empty. This is because the metadata is written to XMP only, and nothing is written or replicated in the legacy IPTC fields.

Using the "Save As" method synchronizes metadata by writing the same values to the XMP as well as all the legacy IPTC fields that share the same fields. The "Save for Web and devices" is ONLY writing XMP. You can verify this by reading both of the files you saved with Jeffery Friedl's online metadata viewer and comparing. For the "Save for Web and Devices" file you will see no entries in the section labeled "IPTC" but you will for the one saved using "Save As." Both files will have entries in the XMP section. For those on the Mac, open your jpeg file in the Apple Preview application, and do a "Get Info" (Tools >> Get Info), and then click on the "details" tab and scroll down.

For those interested in learning more, the Fall 2007 ASMP Bulletin contains an article by Ethan Salwen that covers the basics of Metadata for photographers, (or the PDF version). There are a number of supplemental pages that are very useful reading as well.

By all means you should upgrade Photoshop, as the 10.0.1 upgrade fixes a number of problems with Photoshop printing and has various improvements in Bridge and Adobe Camera Raw, including support for more RAW file formats (and bug fixes as well).

Hope that helps.


David Riecks (that's "i" before "e", but the "e" is silent)
Chairman, SAA Imaging Technology Standards Committee
Version 3 of the Controlled Vocabulary Keyword Catalog - now compatible with Photo Mechanic

Yes, David, it does help. Thanks!

Adobe Improves Photoshop to Address Copyright Management Info

As previously discussed in my May 18, 2006 and July 3, 2007 blogs, it is important to include your copyright management information (name, contact information, and/or copyright notice) with your photos, either by watermarks directly on your photos and/or in the metadata.

Previously, when using the "save for web" function in Photoshop, the metadata would be stripped to make the file smaller and load more quickly. But if the Orphan Works Legislation is successful, you could lose the right to recover damages for infringements when that metadata or other copyright management information is missing.

Thanks to UPDIG and the ASMP, especially members Richard Anderson and Peter Krogh, Adobe has revised Photoshop CS3 (version 10.0.1) to help photographers make a conscious decision as to whether to remove the metadata. Now, the "Save for Web and Devices" feature puts the option to "Include XMP" (a/k/a metadata) in the main Save for Web window where photographers are more likely to find it, instead of buried in a sub-menu. When you choose this option, the metadata, such as your copyright notice and contact info that you have added per instructions in my May 18 blog, stays with the photo file.

It's always best when protecting your work is made easier.

Take my advice; get professional help.

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Nov 19, 2007

Update: Call for Release of Photographer

CNN has reported an update to my earlier blog post on the call for release of photographer, Bilal Hussein.


[Pentagon spokesperson Geoff] Morrell said the reason for the delay in charging the man was that "additional evidence had come to light that the man was a media operative who had infiltrated The Associated Press."

Morrell said the Iraqi court system would hold a hearing later this month to determine if there was enough evidence to continue to trial.

Gee; after a year and a half, I'm sure the Iraqi court will do a fine job. This photographer - who was part of the team that won a Pulitzer Prize - is our biggest worry for security?

Nov 16, 2007

Photography Not Allowed - 4

The National Portrait Gallery currently has an exhibition of Pop Art portraits. Cory Doctorow has a great article in the U.K. Guardian Unlimited about the ironic restriction of photography in the Gallery - despite the Pop artists' use of other copyrighted and trademarked works (purportedly without permission) for their creations.

Nov 12, 2007

The Advantages of Click-Thru Copyright Notices/Agreements

Copyright law provides for enhanced statutory damages (up to $150,000) when an infringement is willful. See 17 U.S.C. Section 504(c). On the other hand, if the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright," damages for infringement may be reduced to as little as $200.

One way to prove in court that the infringer had reason to believe that his or her acts constituted an infringement of copyright is to use a "click-thru/through" agreement/copyright notice. When a viewer of your website checks the box acknowledging that the viewer agrees to the terms presented, it can have the effect of a signed contract according to common-law contract law and the Uniform Electronic Transactions Act (which is accepted by most states). The UETA states in part:

Unless the parties agree otherwise, an offer or the acceptance of an offer or any other matter that is material to the formation or operation of a contract, may be expressed . . . by an activity in electronic form, including touching or clicking an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.

As long as the (1) terms of the notice agreement are clear and concise and the viewer: (2) has time to read the terms; (3) cannot access any of your website/photos without consenting to the agreement; and (4) and plainly agrees to accept the terms, then the click-through agreement likely will be deemed valid and enforceable. It then can help you prove willful infringement or breach of any contract terms you may include.

Some photographers are concerned that click-thru agreements are distracting and/or will hinder buyers from viewing their websites. While willful infringement can be shown in other ways (such as placement of watermarks on each photo as discussed in my July 3, 2007 blog), click-thru agreements may be one of the easiest.

Photographer Andrew Zuckerman has found a tasteful and effective way to effect a click-thru agreement. However you choose to protect your images, choose to protect them in the best ways possible.

Take my advice; get professional help.

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Nov 9, 2007

Report: Three Great Legal Verdicts

1. As reported by PDN Pulse, Doug Menuez's general model release:

For valuable consideration, I hereby irrevocably consent to and authorize the use and reproduction by you, or anyone authorized by you, of any and all photographs taken by Doug Menuez/Reportage negative or positive, for any purpose whatsoever, without compensation to me. All negatives and positives, together with the prints shall constitute your property, solely and completely.

survived a challenge by the model.

2. A Seattle photographer was awarded $8,000 after his wrongful arrest for photographing police officers arresting another. HT:

3. As reported by the NPPA, Photographer Chris Usher will be awarded damages for Corbis Corporation's loss of 12,640 of his images.

Good Friday!

Nov 8, 2007

Evaluating eCO - Electronic Copyright Registration

The U.S. Copyright Office recently began beta testing for its new "eCO" (electronic Copyright Office) web-based registration system. Joseph J. Delconzo, a professional news photographer since 1994 who won Best of Show and 1st place for Spot News in the New Jersey Press Photographers Association 2003 Pictures of the Year, signed up for the testing and graciously agreed to post his review and tips here:

It took many years before I understood the importance of registering my images with the U.S. Copyright Office. My blood began to boil as I came across one of my pictures being used without my permission on a newspaper's website. I remembered the time, expense, and energy it took to make the image in a Guatemalan Jail. Watching the big guy in the yard smacking a little guy in the head every few minutes reminded me that, regardless of the gun-toting guards, we were all fair game. And yes, I wanted to be paid for everything it took for me to make the image. But without registration, I didn't have much in the way of a legal action.

Fortunately, I learned a few valuable lessons from this situation. First and foremost, register your images with the Copyright Office as soon as possible. Second, create a usage/licensing agreement and have it signed by both parties. Third, register your images before they are published - registering published images is a lot more work. Itemizing each image on the Application and creating hard copies of identifying material for each image can comprise countless hours of agonizing preparation.

I recently started Beta Testing for the Electronic Copyright Office (eCO) and am thrilled with the service. I submitted the "Beta Tester" request on the site, was approved about a week later, registered a username/password, and was good to go. The introduction of PhotoShelter's "Collection" and promo of 85% photographer's profit from image sales induced me to get my images submitted before the November 5, 2007, deadline. Since images submitted for sale on PhotoShelter are considered published and copyright registration is effective when the application is received by the Copyright Office, I was pleased to be able to use the eCO system so that could register my images quickly and submit them to PhotoShelter in time.

After logging on to the eCO website for the first time, you must answer a series of questions, such as: what is your browser choice; whether you will file hard copy, electronic registrations, or both; and how many registrations per year do you expect to submit. After answering these profile questions, click on "Register New Claim" and follow the bouncing ball. The next stage is similar to preparing the old registration forms.

You then are required to pay the $35.00 fee (which now is $10 less than the fee to register using hard copies). Again, follow the bouncing ball to a secure site for payment, including by checking account or credit card.

The next step, and probably the one that caused me the most concern, was the process of uploading the deposit. I found out the hard way that there is a time limit for uploading. They consider an 80 MB file huge. You have the option to upload single files or zipped files. When uploading 1000+ images, zips are the obvious choice. The eCO system uses an upload browser with no drag and drop feature like Fetch or other FTPs, which usually are easier to manage. Instead, you must browse for each file, title the file, and repeat that process until you're ready to submit the entire deposit.

I first created a dated folder, dropped several titled sub-folders into it, and zipped the file. It was well over 100 MB. I timed-out half way through the upload (about 30 minutes) and had to start over. I didn't lose my application, which was still in the pending stage. I changed my approach and made 5-6 zips, uploading two files at a time without closing the browser (which causes you to lose everything). The new approach was successful and I got a receipt for each individual zipped file. The entire upload took around 15-20 minutes.

When your application and deposit are received successfully, you will be assigned an identification number and your application will be located in "open cases." If they are not successful, your application will be "pending" with a flag icon stating that "further action is required."

The eCO system is beneficial and relatively easy, especially for an inherent procrastinator like me. Further, we now have the ability to register our images while out of state or abroad as long as we have an Internet connection. Given that eCO saves time, gives an immediate confirmation of receipt, is cheaper, and saves shipping charges, it's an easy choice over the former way of registering.

- Joseph J. Delconzo

Thanks, Joseph, for sharing your experience so that we all can benefit!

Take my advice; get professional help.

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Nov 4, 2007

Photography Can Be A Crime in Texas

An Austin, Texas, radio station reported that a man was arrested for taking photographs with his cell phone of women from behind in a Wal-Mart store. This activity may constitute a crime in Texas. Section 21.15 of the Texas penal code states that:

A person commits an offense [of improper photography] if the person:

(1) photographs or by videotape or other electronic
means visually records another:
----(A) without the other person's consent; and
----(B) with intent to arouse or gratify the sexual
desire of any person; or
(2) knowing the character and content of the
photograph or recording, promotes a photograph or visual recording
described by Subdivision (1).

The maximum sentence for committing this crime is two years in prison and a $10,000 fine.

There is a real question as to whether this law would survive constitutional/free speech analysis. In the meantime, better be careful in Texas.

Take my advice; get professional help.

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