Photo Attorney

One way to help avoid the possibility of your photos becoming orphans is to add icc profiles and copyright metadata to them. For help on the what and how to prepare this information, Judy Herrmann has prepared an article on "Managing Metadata." Check out both part 1 and part 2.

ASMP has published a series of podcasts and answers to many questions about Orphan Works legislation.

These days, authors, artists, and photographers are likely to find one or more of their creative works used without permission. One defense to the purported infringement is often that it is a "fair use." The challenge then is determining whether the unauthorized use is an infringement or fair use. While only a court of law can make that decision, understanding what makes a use "fair" will help you protect your work.

Surprisingly, the purpose of copyright law is not to protect the work of creatives, but, as stated in Article I, section 8, clause 8, of the United States Constitution, it is "to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Copyright law attempts to achieve a balance between public interest and the rights of authors/artists so that artists will be encouraged to create and the public will be the ultimate beneficiary. In many ways, the priority leans towards public concerns when there is any conflict in those interests. As a result, the law may not seem fair or just to the copyright owner.

Rights of Copyright Owners
A copyright is created at the moment a work is made into a fixed form. For authors, it is created when you type the words on your computer. For photographers, it is created at the click of the shutter. For artists, it is created when the paint is applied to the canvas. Copyright law protects both unpublished and published works, regardless of whether they have been registered with the U.S. Copyright Office.

Copyrights give the owner the exclusive right to do, or to authorize others to do, specific things with their works. Copyright law effectively gives you, as the copyright owner, a legal monopoly on the use of that image. It also gives the copyright owner the right to prevent someone else from destroying their work.

When you own a copyright, you have the sole right (also known as the "exclusive rights") to:

• reproduce the copyrighted work;
• display the copyrighted work publicly;
• prepare derivative works based on the copyrighted work; and
• distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

17 USC Section 106.

Rights of Society
Enter fair use. Fair use is the right to use copyrighted materials without the copyright owner's permission. It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without permission as long as they do not prejudice the copyright owner's rights or interfere with normal exploitation of the work. The classic example of fair use is the quotation from a book being reviewed. Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.

Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too. Specifically, Section 107 of the Copyright Act states that:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 USC Section 107.

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

The "purpose and character of the use" is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a "transformative use") instead of simply copied and/or placed into another work.

A court is more likely to find fair use when the "nature" of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works.

An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book. While such a "de minimis" use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.

When the unauthorized use directly effects and competes with the copyright owner's business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer - such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field.

Apparent Inconsistencies in Fair Use Cases
Because of the subjective nature of the fair use factors, many court holdings on fair use appear to be inconsistent. For example, in July 2008, 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 can be reviewed on the NPPA website. 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. However, it's clear that the unauthorized use of a photograph is much more likely to be deemed a fair use when the photograph itself is newsworthy.

A review of significant fair use cases can be found on Stanford's Fair Use Website. A review shows that it is sometimes difficult to predict how a court will rule on a fair use case. While this can partially be attributed to the specific fact situations presented, it does appear that the current application of the law on fair use is unstable and unpredictable.

Conclusion
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 work has been used without your permission and the defense is "fair use," don't be too quick to accept that answer.

The Editor and Publisher Journal reports that the Association of American Editorial Cartoonists (AAEC) and National Cartoonists Society (NCS) now have expressed their concerns about the Orphan Works legislation.

David Ziser of Digital Pro Talk has posted an update and additional info on the proposed bill for NYC wedding photographers to be licensed and submit a bond.

Scott Kelby at Photoshop Insider gives tips on securing permits for using tripods (after he calms down from seeing Julia Roberts!).

Scott Kelby of Photoshop Insider, and many other things, has been admonished again. Similar to his experience as reported in my September 11, 2007, blog, Scott was stopped by hotel security for carrying his tripod while in New York. In response, Scott mocked-up a t-shirt and one of his readers, Rob Jones, has made the t-shirt available on Cafe Press (at Cafe's base price, so he's not making any money off the deal).

John Williams had a similar idea. This is a great, fun and non-threatening way to educate others about photography and photographers! Let me know at photoattorney(at)gmail.com if you create t-shirts, bumberstickers, or other items about taking photos, copyrights, or other isues that support photographers' rights!

Another accountant who works with photographers:

Harold Nelson
Harold J. Nelson Accountancy Corporation
17880 Sky Park Circle
Irvine, CA, 92614
Phone: (949)718-1396
Fax: (949)718-0231
email: harold(at)haroldnelsoncpa.com
www.haroldnelsoncpa.com/

If you known of other CPA/Accountants who work with photographers, please send me their name and contact info.

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

John Harrington has a good overview of where things stand with the Orphan Works legislation.

Check PDN's summary of the situation.

Julia Dudnik Stern interviewed Nancy Wolff and me for an article first posted to Selling Stock (a password protected site) on May 7, 2008. The article has been reproduced with permission on the SAA's Orphan Works Blog.

In light of the concerns about orphan works and to possibly be eligible for enhanced damages when your copyright management information is removed for infringements, it is important to add your contact information to your photos. Laura Cotterman explains in her video tutorial how to create a metadata template to quickly add your contact information to your images in Photoshop or Bridge.

After you add your metadata, make sure that you don't lose it when using the "save for web" function in Photoshop! See my November 20, 2007, blog for more information.

A hearing on a proposed New York City law to require wedding photographers to be licensed and submit a $5000 bond will be held Wednesday, May 07, 2008 at 10:00 AM in the Council Chambers of City Hall. Let your concerns be heard!

Thanks to Terry Michael for submitting this alert!

The APA's position on the Orphan Works Act has just been posted.

The Copyright Office, in keeping with its plan to increase online registrations, is proposing to amend the current regulations governing group registrations, which allow the grouping of individual works on one application. Under the proposal, applicants who take advantage of the group registration option would be required to file their claims electronically. Comments are due on or before May 30, 2008.

To read more about electronic filing with the Copyright Office, read professional photographer Joseph J. Delconzo's evaluation of the system. Try out the Copyright Office's electronic filing system here.

As noted in my previous blog, two versions of the Orphan Works legislation have been introduced - one in the Senate and another in the House. You may analyze the differences in the two bills here. The Senate bill is the original document and the House bill variances are noted by the legal blacklining.

You may compare the differences of the 2006 Orphan Works Act to the current House version here. The 2006 bill is the original document and the House bill changes are noted by the legal blacklining.

The Stock Artists Alliance has just published its commentary about the new Orphan Works legislation.

A school principal came over and asked me to stop taking photos. I stated that I was in a public place exercising my First Amendment Rights. She said that if I didn't stop she would call the police. I didn't object to her making the call.

One officer approached me from the front and as I moved to talk with him, he requested that I place my camera bag and camera on the ground. I was then approached from the back by another officer who asked me to place my hands behind my back and spread my legs. A professional pat-down was conducted and I was asked for my identification. A total of five officers eventually responded to the call.

After being detained for 1/2 hour I was released. The initial confrontation turning into a more pleasant conversation as time passed.

The Fourth Amendment of the U.S. Constitution prohibits "unreasonable searches and seizures," by government personnel except when they have "probable cause" that a crime has been committed. Unless there is an applicable exception, the police must have a warrant to conduct a search or seizure.

There are seven exceptions to the warrant requirement:

1. Search incident to arrest
2. Consent
3. Automobile Exception-requires probable cause to search
4. Plain View
5. Stop and Frisk - based on "reasonable suspicion." Anything observed by sight or touch during that stop and frisk that is illegal can be seized. The police are limited to a search for weapons, but can confiscate other items found.
6. Hot Pursuit
7. Administrative Inventory

The fifth exception arose because of the 1968 case of Terry v. Ohio. There, the Court held that police could "stop and frisk" a suspect on "reasonable suspicion" that he had already committed, or was about to commit, a crime. Under Terry and other cases, courts have held that an officer may stop the person for a brief time and take additional steps to investigate further.

Later, in Hiibel v. Sixth Judicial District Court of Nevada (2004), the U. S. Supreme Court held that a person who is not behaving in a way that gives rise to an articulable suspicion of criminality may not be required to state his name or show identification. On the other hand, no violation of Constitutional rights occurs "when police ask questions of an individual, [and] ask to examine the individual's identification, . . . so long as the officers do not convey a message that compliance with their requests is required." See Florida v. Bostick (1991). However, in Hiibel, the Court ruled that Terry principles permit a state to require a suspect to disclose his name [but not identification] in the course of a Terry stop, either by stating his name or communicating it to the officer by other means, such handing over his driver's license, etc.

If you are on the street and the police ask for your name, you may decline, forcing them to establish grounds for a Terry stop. Instead, you may ask, "Am I free to go?" (Since it's a judgment call as to whether the requirements to justify a Terry stop have been met, you may want to give your name without hesitation.) But you don't have to give the officer your driver's license (if you are not driving at the time) or consent to a search of your person, camera bags, or car, despite being warned that you might be in less trouble if you cooperate, unless the police have a warrant or have met one of the exceptions noted above.

Were Mark's Constitutional rights violated? We need more facts to tell. But it appears that he handled the situation professionally, while not giving up his right to shoot. Kudos!

Take my advice; get professional help.
PhotoAttorney®

Technorati Tags: Constitutional law, search and seizure

Howard Choder is another recommended accountant who regularly works with photographers. He was interviewed by Michelle Golden for an article entitled, "Add and Subtract: Understanding Overhead" that was first published in Photo District News. Also check out his free tax secrets and tax organizers.

His contact info is:

300 E. Pine St.
Seattle, WA 98122
206.323.1066
email Howard
www.taxman.cc/

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

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.