Photo Attorney

Apr 30, 2008

How to Register Your Online Content

Are you a blogger or photographer who often changes your website? Check out this great article by Sarah Bird, Esq., on how to more easily register your online content.

Accountants for Photographers - 2

Here are some more accountants recommended for photographers:

Mark Gaynor, CPA
Atlanta, GA
770.226.5908
Mark's email

Gregory Vitale, CPA
Vitale & Miller, P.A.
800 South Federal Highway
Hollywood, FL 33020
954-925-1300
Fax: 954-921-9576
Greg's email

James T. Crane, CPA
J. Crane & Company, P.C.
47 Third Street
Suite 301
Cambridge, MA 02141
617 374-9200
Fax: 617-374-9201
http://www.jcraneco.com/
Jim's email

If you know of other CPA/Accountants who work with photographers, please send me their name and contact info after first checking with them for permission to post their info here.

Note: These referrals are not endorsements. Be sure to check the qualifications of any professionals before hiring them.

Apr 28, 2008

Q&A - Is Your Photography a "Work for Hire?"

Q. I currently am a "freelance" photographer (without pay) with a newspaper. I have not signed anything with the newspaper. Am I subject to work-for-hire provisions?

A. When you are not an employee of the organization, the agreement for a "work for hire" scenario MUST be in writing for the copyright to belong to the hiring company. See 17 USC 101.

Sometimes, however, there is a dispute as to whether you are an "employee" of a company. The case that is most cited to determine whether you are an employee is CCNV v. Reid. There, the court explained:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

To assist in understanding the application of this law, the Copyright Office has prepared a circular.

If you are a full-time employee and do some part-time shooting for the company (because you have the "big camera") and/or shoot on company time, it is a judgment call as to whether the photography is within the scope of your employment. But if you get a statement/agreement in writing from your employer to confirm that it isn't, it will be helpful later if there is any dispute.

Apr 26, 2008

Accountants for Photographers

Photographers face unique tax and accounting issues. Having a professional to help you with those challenges can save you time, money, and potential fines. But sometimes it's difficult to know who to turn to for help.

One accountant who has been recommended to work with photographers is:

Michael Arena
Culver City (Los Angeles area), California
310-717-9723
email for Michael

If you know of other CPA/Accountants who work with photographers, please send me their name and contact info after first checking with them for permission to post their info here.

Note: These referrals are not endorsements. Be sure to check the qualifications of any professionals before hiring them.

Apr 25, 2008

Update on Orphan Works - Better But Not Best

ASMP has a new update on the Orphan Works legislation. Two versions have been introduced - one in the Senate and another in the House. The Stock Artists Alliance has posted each of them on its Orphan Works blog. While neither version is ideal, ASMP is supporting the House version. The Illustrators' Partnership is unhappy with both. Stay tuned to learn what you can do to help support creators' rights.

Apr 24, 2008

Q&A - Registering Your Copyrights

It is dangerous to register your copyrights incorrectly. The first thing that an infringer will do is to attempt to invalidate your registration. You might as well keep your $45/$35 and spend your time shooting if you're not going to take the time to register your photos correctly.

You must separate your registrations by published and unpublished photos. According to the US Copyright Office, for your unpublished photos, you may register them by collections:

Under the following conditions, a work may be registered in unpublished form as a "collection," with one application form and one fee:

  • The elements of the collection are assembled in an orderly form;
  • The combined elements bear a single title identifying the collection as a whole;
  • The copyright claimant in all the elements and in the collection as a whole is the same; and
  • All the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element.
For your published photos, you must separate the registrations by calendar year published (see #2 on this US Copyright Office page)

As the Copyright Office states, you must send:
  1. a correctly completed application Form VA or Short Form VA. Follow the instructions for completing Form VA as provided on the Form GR/PPh/CON.
  2. A completed Form GR/PPh/CON.
You must normally use [Form GR/PPh/CON] if the date of publication is not identified on each of the deposited images. However, use of this form is optional if the images you are registering were all published within the 3-month period immediately prior to the date of receipt of your application, or if each of the deposited images published within a calendar year contains a specific date of publication. If you choose to use Form GR/PPh/CON, you are limited to 50 continuation sheets and 750 photographs on any one application.

Further, as ASMP explains,

"Fortunately, there are alternative ways of registering a large group that do not use the continuation form. As explained in the Copyright Office's formal regulation on the subject, you may instead:

  • Submit a group of photographs published within three months before receipt in the Copyright Office and give the range of dates within that period on the application for registration at space 3b; or
  • Submit a group of photographs published within a calendar year, give the range of dates within that period on the application for registration at space 3b, and identify with each deposited image the date of its publication.
The regulation goes on to clarify that, if you elect not to use continuation sheets, the date of publication may be provided in any of three different ways:

  1. directly on each deposited image,
  2. in a text file on the CD-ROM or DVD that contains the deposited photographic images, or
  3. on a list that accompanies the deposit.
Dates of publication must be provided in a way that clearly identifies the date of publication for each individual photograph in the group."

Read it, learn it, do it!!!

Apr 23, 2008

Odd Photographer = Terrorist?

This is a poster from the
United Kingdom's Metropolitan Police's
new advertising awareness campaign,
asking the public to be vigilant about
people taking photographs.

The BBC recently reported on how photographers in the UK are being hassled, stopped, and/or questioned about their photography. With a poster like above, it's no wonder that photographers are under suspicion. As pointed out in the BBC article, in days where most everyone has a cell phone camera, it's ironic that the larger your camera, the more likely that you'll be hassled. Terrorists are prone to be more discreet.

Like the US, photographers in the UK have the right to photograph most things in public. But both nations have laws that allow government personnel to question and investigate certain persons, including photographers, within limits. Further, the FBI and the Department of Homeland Security published a memo asking "owners and operators of of the nation's critical infrastructure/key resource facilities [to] provide reporting . . . on the following types of suspicious activities potentially indicative of pre-operational terrorist planning: . . . [such as] photographing or videotaping assets . . . [and] any surveillance activity of sensitive operations, including photography, videotaping . . . ." The UK has a law that allows "police officers [to] randomly stop someone without reasonable suspicion, providing the area has been designated a likely target for an attack." See Section 44 of the Terrorism Act 2000. One such incident was reported on a blog, (but note that the law does not make street photography itself illegal, as the title suggests). One UK photographer has protested "to highlight the failure of law enforcement officers to protect media freedoms."

Fortunately, Bert Krages, Esq., has prepared a downloadable PDF file that outlines photographers' rights in the US. The Arts Law Centre of Australia provides a "Street Photographer's Rights" guide and Andrew Nemeth, Esq., covers legal issues that apply to street photography in NSW Australia. Linda Macpherson, Esq., has written the "UK Photographers Rights PDF."

As a result, some are using the Internet to share information and stories, and to protest and protect photographers' rights. Check out the "War on Photography" blog, "PhotoPermit.org." and the "Picture New York" website.

Be sure to cooperate with police officers as much as possible when stopped. But you also should know your rights and do what you can to protect your rights if they are violated.

Thanks to Steven Joerger for submitting the BBC article.


Take my advice; get professional help.
PhotoAttorney®

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Apr 21, 2008

The Copying of an Idea vs. Expression

William Patry has a blog entry on the blog, Youthoughtwewouldntnotice.com, a site "dedicated to pointing out those thing's that give you that feeling of 'haven't I seen that somewhere before?'" The blog gives artists an opportunity to post instances of where they believe their work has been copied.

Copyright law protects only the expression of the idea, not the idea itself. Specifically, 17 USC Section 102 states that:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. . . .

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

In sum, a photographer can have copyright protection for a particular expression of an idea. If another photographer expresses the same idea too much in the same way as the first photo, it may constitute an infringement.

Apr 16, 2008

Bilal Hussein Finally Free!

AP photographer freed by US military after 2 years!

Apr 15, 2008

Registrations by Paper Taking Up To 8 Months!

From the U.S. Copyright Office: The Copyright Office is modernizing its operations by moving from a paper-based to a Web-based processing environment. This change will allow the Office to better meet the needs of its customers through more online services and faster processing times. However, the transition has caused a temporary backlog of paper applications. The time lag for receiving a registration certificate is currently up to 8 months. The Office is working diligently to improve the processing time and apologizes for this inconvenience.

Regardless of when you receive your certificate, the effective date of registration of a work is still the day all the required elements in acceptable form are received by the Copyright Office.

You are strongly encouraged to register claims using the new Web-based registration system named electronic Copyright Office (eCO) e-Service. Currently in production under a beta test, eCO e-Service is easy to use and offers a reduced fee for electronic registrations ($35). You will receive your registration certificate in a much shorter time than you will if you send a paper application.

Apr 10, 2008

UPDATE: AP Photographer Ordered to be Released BUT REMAINS A PRISONER

Update: Yesterday, the AP announced that an Iraqi judicial committee has dismissed terrorism-related allegations against Associated Press photographer Bilal Hussein and ordered him released nearly two years after he was detained by the U.S. military. As previously reported, Hussein was arrested by U.S. soldiers in Ramadi, Iraq, on April 12, 2006. Additional background is available on the Reporters without Borders website and from the AP.

TODAY: PDN has reported that Bilal will remain in prison while the U.S. military conducts its own review. The U.S. military turned Hussein's case over to the Iraqi court system last year, but said it has the right to continue holding security detainees even if an Iraqi court drops their case.

Apr 5, 2008

When Talking About the Law is Fun


One of the best things about my work is meeting and speaking with photographers about legal issues that affect them. The pleasure was recently confirmed by a second appearance at the ISAP conference where trademarks in photos was a dominant topic. Despite the dry subject, we had a great time!

The 2008 CNPA conference is April 10-13 in Charleston, SC. It has been great to speak at the conference for the past two years. This year's speakers are Arthur Morris, Kevin Adams, Darrell Gulin, and Bill Lea. You can learn more about the wonderful organization and see clips of my presentation last year in the "promotional video."

Join me in August with Vivid Wildlife Workshops as we photograph coastal brown bears ("grizzlies"), puffins, and the beauty of Alaska. When taking breaks from these amazing photo ops, we will talk about Photoshop, photo techniques, and photography law. Sign up soon! Only two spots remain.