Photo Attorney

Mar 31, 2008

Legislature May Resolve Issue in James Brown v. Corbis Action

As previously reported, James Brown (now deceased but his estate is continuing the action) filed suit against Corbis in Illinois claiming that Corbis violated Brown's right of publicity for "commercial use of his image on the Internet" by selling/licensing photos of him. Corbis took a hit last August when the Illinois appellate court affirmed the denial of Corbis' motion to dismiss. The case thus is still ongoing.

The Chicago Sun-Times recently reported, however, that the Illinois House of Representatives has passed a bill that will allow organizations to sell a photograph without being liable if the customer uses it illegally. Brown's attorney concedes that the damages the Brown family would be entitled to could be moot if the legislation passes.

This is hopeful news for both photographers and stock agencies!

Mar 28, 2008

Photo Attorney Talks with Photo Talk Radio about Fair Use and Copyrights

Howard Lipin and Michael A. Garcia of Photo Talk Radio asked me to return to Photo Talk Radio this week to discuss the alleged use without permission of photographs of the woman connected to the Elliott Spitzer story and issues related to copyrights and infringements, and registration of copyrights of foreign photographers with the U. S. Copyright Office. The broadcast is available on the Photo Talk Radio website.

Photo Talk Radio previously interviewed me about the ways you can protect your photography and other legal issues for photographers. You may download the interview from the Photo Talk Radio website. For other interviews of Photo Attorney available online, check the The Digital Photography Show and the Photofocus archives.

Mar 22, 2008

The Orphan Works Bill Rears Its Ugly Head Again

During 2005, the Copyright Office studied issues raised by "orphan works" - copyrighted works whose owners may be impossible to identify and locate. Concerns had been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts, or from making such works available to the public.

In response, legislation was introduced in 2006 to address the issue but it was unfair to creators, including photographers. You can read background information about it on my March 1, 2006, and September 26, 2006, blogs.

Although the 2006 proposal never passed the Committee's review, new legislation is underway. The House Subcommittee on Courts, the Internet and Intellectual Property held a "Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users" on March 13, 2008. You may view it on the Subcommittee's website. Further, ASMP is reporting on the status of the bill regularly.

Because photographers' rights may be dramatically affected, keep advised of the bill's status. It's usually easier to keep rights than to try to get them back.

Mar 20, 2008

Court Finds Opposite - Photographs of Copyrighted Items Are NOT Derivative Works!

As a follow up to last Sunday's blog, the controversy continues. The good news - we now have another opinion by a court that has held that photographs of copyrighted items are NOT derivative works!

In Latimer v. Roaring Toyz, Inc., 2008 WL 697346 (M.D. Fl.), Todd Latimer took photographs of motorcycles with customized art work on them. When Latimer sued several parties for copyright infringement after his photos were used in various ways without his alleged permission, the defendants claimed, among other things, that Latimer did not have a copyright in the photos because they were unauthorized derivative works.

But unlike the Schrock court in Illinois, the Florida court in Latimer rejected the defense. It stated:
Under 17 U.S.C. Section 101, a derivative work must incorporate a substantial element of a preexisting work of authorship and recast, transform, or adapt those elements. See SHL Imaging, Inc. v. Artisan Homes, Inc., 117 F.Supp.2d 301, 305-306 (S.D.N.Y. 2000) (noting that "any derivative work must recast, transform or adopt the authorship contained in the preexisting work," the Court found that "the authorship of the photographic work is entirely different and separate from the authorship of the sculpture" depicted in the photograph). As explained in SHL Imaging, "a photograph of . . . [a] 'Puppy' sculpture in Manhattan's Rockefeller Center[ ] merely depicts that sculpture; it does not recast, transform, or adopt . . . [the] sculptural authorship. . . . [A]uthorship of the photographic work is entirely different and separate from the authorship of the sculpture." Id. at 306. It is undisputed that the artwork on the motorcycles is the original, creative expression of Ryan Hathaway, and as such, entitled to copyright protection. Defendants contend that since Hathaway did not grant a license to Latimer to make a derivative work by photographing Hathaway's artwork, the photographs at issue are unauthorized derivative works. The Copyright Act states that "[a] work consisting of editorial revisions, annotations, elaborations, or other modifications [to a preexisting work that], as a whole, represent an original work of authorship, is a 'derivative work.'" 17 U.S.C. Section 101. If, however, it is non-infringing and sufficiently original, such a work qualifies for a separate copyright. The Court rejects Defendants' argument that Latimer can have no copyrightable interest in his photographs. Here, Latimer has not altered Hathaway's artwork, recast it, or otherwise transformed it during the photographic process. The ZX-14s [motorcycles] are the subject of the photographs. Hathaway's artwork has not been transformed in the slightest-it is presented in a different medium, but it has not been changed in the process such that it meets the criteria for a derivative work under copyright law. While Latimer has copyrighted photographs of the ZX-14s, he does not seek to monopolize the subject matter or idea of the photographs but merely to protect the actual reproduction of his expression of the idea, to wit, the photographs themselves. As in SHL Imaging, Latimer has not "recast, transform[ed], or adopt[ed]" Hathaway's artwork. Defendants' argument that Latimer's photographs are derivative works lacks merit.
Emphasis added.

The rest of the order is worth reading because it discusses the application of the particular facts of the case to copyright law that led the court to dismiss defendants' claims that: Latimer's photographs were joint works; Latimer granted an implied license for the photographs; the uses by defendants were fair use; and Latimer's photographs were not copyrightable.

Congrats to Todd Latimer for protecting his work.

Take my advice; get professional help.

Technorati Tags: ,

Mar 16, 2008

Who Owns the Copyright to a Photograph of a Copyrighted Work?

As previously mentioned in this blog, photographing other copyrighted works may violate the copyright of others. Based on this, the Vietnam Women's Memorial Foundation ("VWMF") sued a company for selling refrigerator magnets with a photo of the Vietnam Women's Memorial statue in D.C. (review the complaint here and read a summary on my February 15, 2006, blog. The VWMF subsequently voluntarily dismissed the claim, reporting that the dispute had been settled. In another case, as reported in my June 8, 2007 blog, a photographer's book containing photographs of graffiti was pulled from the shelves.

Recently, an Illinois District Court held that Daniel Schrock of Dan Schrock Photography had no right to register his photographs of toys because they were unauthorized derivative works of the copyrights in the toys. Schrock was hired by Learning Curve Intern, Inc. ("LCI"), to shoot the toys for marketing uses. Alleging that LCI and others had used the photos beyond the license terms, Schrock sued for copyright infringement. But the Court agreed with the defendants that "without approval from the owner of the underlying [copyrighted] work, approval that was totally absent here, Schrock could not obtain a copyright over his derivative works."

The law in this area is confusing, given that some courts have held that "the authorship of the photographic work is entirely different and separate from the authorship of the sculpture." See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301 (S.D. N.Y. 2000) (finding that the photograph of Jeff Koons' "Puppy" sculpture merely depicted the sculpture; it did not recast, transform, or adapt Koons' sculptural authorship). The confusion began with the Ets-Hokin v. Skky Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000), where the court held that a photograph of a vodka bottle was not a derivative work only because the bottle was not copyrightable.

Attorneys William Patry (Senior Copyright Counsel, Google Inc., and considered by some to be the new "father" of copyright law - replacing Nimmer) and Nancy Wolff have excellent summaries and analyses of the Schrock decision. Fortunately, Schrock's attorney has reportedly filed an appeal and ASMP is working on an amicus brief and will seek support from other associations.

Here's hoping for the best with Schrock's appeal!

Mar 14, 2008

10 Important Legal Issues for Photographers

When photography is your business, you need to know more than about shutter speed or aperture. Consider this quick checklist of 10 important legal issues before you next click your shutter.
  1. Will you own the copyright to the image? Yes, unless you're shooting for your employer or it's a work-for-hire situation.
  2. Are you on private property to take the photo? You'll need the owner's permission to shoot there or you'll be trespassing.
  3. Are any people in the photograph recognizable? If so, you'll need a model release to use the photo commercially.
  4. Does the photograph contain minors? Get the parent or guardian to sign the model release.
  5. Are you photographing a trademark? You'll need the trademark owner's permission to use the photo unless it falls under fair use, does not confuse the public as to the source of the photo, or does not weaken the trademark by blurring, tarnishment or dilution.
  6. Are you violating any city, county, state or federal law, such as photographing a protected nuclear facility?
  7. Are you taking a picture of a copyrighted work? If so, you'll need the copyright owner's permission to make a copy or derivative of the work, unless it falls under fair use.
  8. Does the person you are photographing have an expectation of privacy that you are violating?
  9. If you are paid for the shoot, do you have errors and omissions insurance policy in case you miss/ lose the important shot?
  10. Does the act of your taking the photograph interfere with or endanger others? You can't block an emergency exit or a public sidewalk.

Search this blog for additional information on each of these topics. Remember, there's more to the business of photography than just taking pictures.

Take my advice; get professional help.

Technorati Tags:

Mar 7, 2008

Alert: Ski Area Gets RF Images from Photo Contest

Photo by Ashley Hahn-Severance
Spring skiing provides great photo opportunities. Accordingly, the Loveland Ski Area is sponsoring a photo contest, but it leaves the photographer in the cold.

The rules provide that:

Contestants grant Loveland Ski Area and contest sponsors unlimited usage and unrestricted rights of any photograph submitted to the contest. Any submitted photograph may be used in products, promotional materials, or in any manner Loveland sees fit.

At least you are granting the RF license only to the Ski Area. But what do you get if you win? You won't know for a while: "Monthly prizes will be given out January - April to the months best submission. At the end of the season, an overall winner will be selected as well as category winners. The overall winner will not be eligible for category winnings."

Thanks to Ashley Hahn-Severance for submitting this alert and photograph.

Mar 2, 2008

Alert: Bissell Needs to Clean Up Its Act

By entering Bissell's photo contest, you:

assign to Sponsor all right, title, and interest in your entry in any and all media whether now known or hereafter devised, in perpetuity, anywhere in the world, with the right to make any and all uses thereof, including, without limitation, for purposes of advertising or trade. The rights granted under this paragraph shall extend to all entries and all other submitted materials related to the promotion, including those submitted by non-winners and winners. . . . The rights granted under this paragraph shall extend to Sponsor and its affiliated companies with respect to all entrants in the Contest, including non-winners and winners.
(From Section 7 - emphasis added.)

So even if you don't win, you give Bissell your copyright. That sucks.

Thanks to Steve J. Brooks for submitting this alert.