Photo Attorney

Dec 29, 2007

New Travel Restrictions Affect Photographers

Beginning January 1, 2008, the U.S. Department of Transportation is changing how and how many extra lithium batteries we pack for our flights (such as those for cameras and computers). In sum, you may not pack extra lithium batteries in your checked luggage, but you can put them in your carry-on bags. The regulations state:

Effective January 1, 2008, the following rules apply to the spare lithium batteries you carry with you in case the battery in a device runs low:

  • Spare batteries are the batteries you carry separately from the devices they power. When batteries are installed in a device, they are not considered spare batteries.
  • You may not pack a spare lithium battery in your checked baggage.
  • You may bring spare lithium batteries with you in carry-on baggage - see our spare battery tips and how-to sections to find out how to pack spare batteries safely!
  • Even though we recommend carrying your devices with you in carry-on baggage as well, if you must bring one in checked baggage, you may check it with the batteries installed.

The following quantity limits apply to both your spare and installed batteries. The limits are expressed in grams of "equivalent lithium content." 8 grams of equivalent lithium content is approximately 100 watt-hours. 25 grams is approximately 300 watt-hours:

  • Under the new rules, you can bring batteries with up to 8-gram equivalent lithium content. All lithium ion batteries in cell phones are below 8 gram equivalent lithium content. Nearly all laptop computers also are below this quantity threshold.
  • You can also bring up to two spare batteries with an aggregate equivalent lithium content of up to 25 grams, in addition to any batteries that fall below the 8-gram threshold. Examples of two types of lithium ion batteries with equivalent lithium content over 8 grams but below 25 are shown below.
  • For a lithium metal battery, whether installed in a device or carried as a spare, the limit on lithium content is 2 grams of lithium metal per battery.
  • Almost all consumer-type lithium metal batteries are below 2 grams of lithium metal. But if you are unsure, contact the manufacturer!

Get more information on the DOT website.

HT to Andy Biggs, the Global Photographer.

Dec 27, 2007

Misunderstanding CAR THEFT Law And Ruining Everyone's Fun

Note: this blog is for criticism, comment, and parody purposes (= fair use) and in no way asserts that any one is a car thief!

As previously discussed in my December 18, 2007, blog, some have been critical of Lane Hartwell's take down notice for the video, "Here Comes Another Bubble," by The Richter Scales because it contained one of her photos that was used without her permission. But copyrights are property just as are cars. To get a sense of the rights that are violated when someone uses your copyrighted work without permission, the passage from TechCruch's post on this subject has been copied here but replaced with words (where bolded) that reference car ownership instead of copyright. [Some words have been removed - indicated by an elipsis - where the video specifically was referenced.]

So the car theft that everyone has been talking about is history . . . . It is the victim of a bullying tactic by a car owner and her lawyer. Once again, a perversion of car theft law is being used to destroy driving. . . . But the car has now been taken back, because the owner . . . complained that she wasn't paid for the use. She hired a lawyer and sent take back notices to all of the major car sites, and the car was returned.

A bit of a mob in favor of the owner has come together to support her. But the mob, while virulent in their support, has little understanding of car theft law.

I spoke with a car theft attorney this afternoon and described the facts to him. He confirmed my thoughts on the matter. Car theft law is a structure around prohibitions, not permissions, he says. That means it lays out rules for things people cannot do with your car - it does not give you the right to demand permission before any use is made.

The alleged car theft was almost certainly fair use of the car. A court would look at a variety of factors in making the determination. Among those factors, a court would decide if the use is likely to adversely affect the incentives of others to drive and whether their decision one way or another would tend promote the progress of driving. In this case, the inclusion of the car in a parody drive would almost certainly be held by a court to be fair use, the attorney said.

The real issue here is that owner's feelings were hurt. She wanted attribution in the car, and the alleged thieves ignored her. Attribution and people's feelings are not things car theft law considers; rather, it sets forth the rules under which cars may be or may not be used by others. In this case, a court would likely side with the alleged thieves. But to avoid the risk, they decided to simply take back the car. . . .

Societal ideals around what constitutes ownership over cars are changing. People who try to protect and silo off their cars are simply being ignored. Those that embrace the community, and give back to it not only allowing but asking for their cars to be mashed up, re-used and otherwise embraced are being rewarded with attention. At the core is a basic implicit understanding - if you want to be part of the community, you have to give back to it, too.
Next time you want to use someone's copyrighted work without permission, think what it'd be like if someone drove your car without your consent.

Take my advice; get professional help.
PhotoAttorney®

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Dec 23, 2007

New Speaking Engagement - ISAP


Please join me for my return appearance at the International Society for Aviation Photography Symposium along with Scott Kelby, Vincent LaForet and others. Feb. 28 - March 1, 2008 at Dallas/Ft. Worth South Marriott. See you there!


Photo by Kristin Boyd

Dec 21, 2007

Report: Hearing on Revised Proposed NYC Photography Rules

Anthony Kaufman of the Village Voice attended and reported on the final hearing for the revised proposed photography regulations put forth by New York's Mayor's Office of Film, Theater and Broadcasting (MOFTB). For background, see my October 29 blog and my August 3 and August 5 blogs.

As most photographers have discovered, it's usually not the rules that interfere with photographer's activities, it's the rules enforcers. This problem exists in big cities, small towns, and state and national parks. The only way to combat it is to continue to assert our rights.

Dec 20, 2007

Follow Up on "Infringement or Fair Use" - Hartman Interview

CNet.com News has a great interview with Lane Hartman about the "Bubble" video issue. Definitely worth reading.

Dec 18, 2007

Infringement or Fair Use?

When people are caught using a photograph that has not been licensed from the photographer, the first defense is to cry "fair use" or "it's free marketing." Another common response is that the photo is not "special" and anyone could have taken it. Then why didn't you?

One such case is the video, "Here Comes Another Bubble," by The Richter Scales. Photographer, Lane Hartwell, asked that the video be taken down from YouTube because it contained one of her photos that was used without her permission. Daryl Lang of PDNPulse has covered it well.

The comments on Techcrunch show the widely-varied opinions about whether others can use your photographs without permission. However, opinions don't matter in infringements - the law does.

Photographers haven't done as well as other creative industries in teaching users that copying our photos is illegal. The first thing you see when watching a video is a large FBI notice and a short clip with loud music stating that making copies of the video is a crime. The recording industry has sued those who made music available online. We learned in grade school that to copy another's written work is plagiarism and will result in a failing grade.

Some photographers' websites have the copyright notice so small it's barely visible. We worry that watermarks will impair the viewing of the photo. When infringements are found, we let them slide rather than using the DMCA takedown provisions or sending a cease and desist. We don't register our photos and then are upset that we can only recover an ordinary license fee. Now, Hartwell is being criticized for complaining about the unauthorized use of her photo in the "Bubble" video.

It's time to get tough as Hartwell has done. Infringements are only going to increase. And nobody is going to protect your rights unless you do.

Take my advice; get professional help.
PhotoAttorney®

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Dec 16, 2007

Holiday Shopping for Photographers


Give the gifts that photographers (others or yourself) will truly love!

Contact Carolyn for details.

Dec 15, 2007

Mythbuster - Three Xs License Fee for Infringement

Photographers often find that their photos have been infringed. They sometimes send the infringer an invoice at three times their normal license fee in an attempt to resolve the issue.

Mythbuster - The "Three Xs License Fee for Infringement," while it may be an industry standard, is not a legal right given by any court of law or statute. Instead, the law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504.

The damages that you can receive from infringement - especially if you timely register your photographs - sometimes can amount to a lot more than three times your normal license fee. Next time you're infringed, you may want to think 2x before you send the 3x letter.

Dec 13, 2007

Report on Hearing for Proposed Photography Rules for Federal Lands

The House Committee on Natural Resources held a hearing yesterday, December 12, 2007, on the "New fees for Filming and Photography on Public Lands." The Department of the Interior ("DOI") has proposed regulations that will (among other things): define what is "commercial filming"; require permits for audio taping; and allow government agencies to deny permits for still photography that the DOI feels is "inappropriate." The hearing was broadcasted on the Committee's website.

The Committee first heard statements from Mitch Butler, Deputy Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior, and Leslie Weldon, External Affairs Officer, Office of the Chief, U.S. Forest Service. The Committee then asked questions of the agency representatives.

The Committee next heard from Timothy Wheeler, President, Society of Environmental Journalists; Barbara S. Cochran, President, Radio-Television News Directors Association Tony Overman, President, National Press Photographers Association; Steven Scott, Chairman of the Board, Professional Outdoor Media Association; and Victor S. Perlman, General Counsel and Managing Director, American Society of Media Photographers, Inc. (ASMP). All of the statements by those who presented are available for review from links from their names listed on the Committee's website.

Butler appeared to struggle with his position and generally could not answer direct questions because, as he alleged, the DOI is still working on the regulations. One of the greatest concerns is that the regulations lack clearly-defined terms. For example, the regs state that filming is commercial (thus requiring a permit) when it is for a "market audience"; however, neither the regs nor could Butler tell the Committee what is a "market audience." An additional concern is that the agencies plan to rely on the individuals "on the ground" to determine when a permit should be issued and what should be charged for each permit.

One Committee member believes that if photographers are going to make money from the photographs taken on the federal lands, then photographers should pay to photograph there. Overman replied that the only consideration in determining when a permit is required should be whether the taking of the photo interferes with the park operations and natural resources - not the "ultimate purpose" or "end usage" for the photos. The presumption should be that still photography is allowed and a permit is needed only for the existing narrowly-defined exceptions - when a photographer uses props or models or needs access to non-public areas. In sum, Overman questioned why a journalist should be required to pay more than a visitor when their activities are the same.

Perlman asked the Committee how a park ranger can determine whether a photographer is a professional and whether an amateur who licenses a few photos on the side must get a permit. He asserted that the guidelines are too vague to allow for consistent interpretation from park employee to park employee. Further, he explained, most photographers are freelance and thus have no idea if they will ever license a photo from a shoot; even then, the license income is usually quite low.

In sum, the photography representatives appropriately and adequately presented the concerns about the regulations as they affect photographers and the Committee appeared to understand most of the issues. Subsequently, the Committee Chair, Nick J. Rahall (D-WV), issued a press release calling on the DOI to revise the regulation before the rule is finalized.

Rahall stated:
"Maintenance in our National Parks, listing of endangered species, fire preparedness, and responsible energy development are just a few examples of serious policy failures by the Bush Administration. Any hint that this new permit and fee structure could limit the free-flow of public information regarding the very real consequences of these failures is simply unacceptable."

"A reasonable return to the Federal Treasury for the commercial use of federal lands is one thing - trying to hide the damage done to those lands from the public under a mound of fees and permits is quite another."

Thanks to the photography associations who appeared before the Committee to protect the rights of photographers.

Dec 6, 2007

Hearing Scheduled on Proposed Photography Rules for Federal Lands

An announcement from the House Committee on Natural Resources on the "New fees for Filming and Photography on Public Lands":

Amid concerns over the impact that an Interior Department proposed rule could have on the ability of professional journalists to access National Parks, Wildlife Refuges and other federal lands for legitimate news coverage, the House Natural Resources Committee will convene an oversight hearing to examine these assertions of infringement on First Amendment rights.

"An environment that allows an open and free press to flourish is essential in maintaining the democratic foundations of this country. Unfortunately, this Administration has gained a well-earned reputation for leaking, distorting, and stonewalling, which undermines the ability of the press to serve as a valuable check on the government. The news media's concerns over this proposed rule deserve an open forum," said U.S. Rep. Nick J. Rahall (D-WV), the Committee's Chairman.

In 2000, the Congress passed legislation [P.L. 106-206] to streamline the filming policy across agencies under Interior's jurisdiction - including the National Park Service, Fish and Wildlife Service, and the Bureau of Land Management - and require special use permits and fees on commercial filming and other such activities. While the law intended to exempt traditional news media to allow coverage of public lands, natural resources, and conservation issues, the proposed regulations implementing the law have been criticized for going too far in limiting access to these lands for small-scale and documentary filming, freelance and independent productions, audio recording, and still photography.

In an October 19 letter to the Interior Department on the proposed commercial filming rule, the Society of Environmental Journalists (SEJ) and a large coalition of other national professional journalism groups stated their, "... strong concern over the possible negative impact of the proposed rule on the First Amendment rights of a free press."

The hearing is scheduled for Wednesday, December 12, 2007, at 10:00 a.m. in room 1324 Longworth House Office Building in Washington, D.C. Anticipated witnesses include Administration officials, as well as representatives from several prominent professional print, broadcast and photojournalism organizations, including the ASMP, TV News Directors Association, the Society of Environmental Journalists, and NPPA.

The hearing will be webcast live on the Committee's web site at http://resourcescommittee.house.gov/.

For more background on the Interior regulations, see:

The Interior Department's proposed regulations.

The ASMP testimony given in 1999.

A statement by the Society of Environmental Journalists.

Still photographers have in the past enjoyed the freedom to photograph federal lands, even if they were doing it for more than a hobby. Hopefully, those liberties will continue.

Report: Copyright Infringement Case Dismissed=Settled?

John Harrington reports on his blog that the copyright infringement lawsuit filed by Louie Psihoyos against Apple has been dismissed with prejudice. When you dismiss a lawsuit "with prejudice," you cannot file that claim again against the same party. It appears that the parties have reached a confidential settlement.

Thanks for the alert, John!

Dec 4, 2007

Property Release Requirement Put to the Test

Readers of my blog (see, for example, my May 9, 2006, blog and May 24, 2006, blog for more information) are familiar with my position on the lack of a legal need for property releases except when photographing other copyrighted works and, in few cases, trademarks. Because no court or state has established a law - either by statute or by case law - that has created a right protecting the image of property, then it likely is detrimental for photographers to obtain property releases.

One photographer is being put to the test on this issue. The College of Charleston Foundation has sued Benjamin Ham for trespass, invasion of privacy, and conversion for his taking and selling photographs of the College's property, known as the "Dixie Plantation." The photo at issue, called "Plantation Road," can be seen on the Martin Gallery's website. A copy of the complaint is here. In sum, it appears that the College is claiming that Ham should not benefit from his alleged tort of trespass. The College also argues that it has "the right to prevent and/or control photography of a subject matter on restricted property" but does not seem to cite a law to support that proposition.

The College alleges that Ham passed through locked gates and ignored the "no trespassing signs" to enter its property without permission to take photographs. The College also claims that Ham violated the College's right of privacy (interesting, because the College does not allege that any person's privacy was violated) and that the commercial sales of the "Plantation Road" constitute "conversion" of the College's property for Ham's own use.

Ham's attorneys "removed" (moved) the case from the state court to federal court because, as Ham claims, the College is attempting to exert rights over Ham's copyright in the photograph - an issue that can be decided only by a federal court. Ham also has moved to dismiss the complaint alleging that, even if everything that the College alleges is true in its Complaint, the College has no right of action against Ham. The brief in support of the motion to dismiss can be viewed here.

Specifically, Ham claims that the College has no right of action against him because the federal copyright act preempts the state causes of action for trespass and conversion, the trespass claim fails because the College did not allege that Ham's trespass caused any physical damages as required, and because the College (as a non-person) has no right of privacy.

Of specific interest is the discussion of the conversion claim on page 6 of the brief for the motion to dismiss. Note that Ham's attorneys assert that the South Carolina law of conversion only relates to "personal chattels" and "goods," which are physical property such as shoes and Ipods, as opposed to intellectual property, such as copyrights. As addressed on page 8, courts rarely force a transfer of copyrights although they have restricted what the photographers can do with them. See an example in my September 30, 2006, blog.

The College has asked the court to remand the case back to state court and multiple briefs on the issue have been filed by both sides. The court will have to address the important issue of whether the plaintiff's state claims are preempted by copyright law before the questions of liability can be resolved.

The case could represent an important decision for photographers with respect to the need for a property release.

Thanks to the reader who submitted this alert (please contact me again).

Take my advice; get professional help.
PhotoAttorney®

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Dec 2, 2007

Copyright Protection for Foreign Photographers - II

As a follow up to my November 16, 2005, blog on the ability and steps for foreign photographers to register their copyrights in the U.S., Ray Dowd at the Copyright Litigation Blog explains why it's a good idea.