Photo Attorney

May 31, 2008

Photography Is/Not Allowed? - 7

Fox 5 TV station in Washington DC interviewed Joel Lawson yesterday about harassment of photographers at Union Station. While an Amtrak spokesperson was explaining that photography is allowed in Union Station, a security guard interrupted to tell the journalist to stop filming the interview!

Good news: Congresswoman Del. Eleanor Holmes Norton, is reportedly looking into legislative measures to protect the right to take photos in DC.

Thanks to Joel Lawson for representing photographers well and for submitting this alert!

p.s. Also check this video of and article about a police office attacking a photojournalist who says, "[the camera] is the only thing to protect me."

Thanks to Jamie De Pould for submitting this alert!

May 30, 2008

Another IP Attorney Fights Orphan Works

Tammy L. Browning-Smith, an IP attorney specifically for those in the Creative Industries, has posted a copy of her letter to the House of Representatives regarding concerns about Orphan Works on her blog and has given permission for it to be posted here:

May 6, 2008

RE: Orphan Works Act of 2008 - H. R. 5889
Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. THIS IS A SERIOUS BILL WITH SERIOUS ECONOMIC IMPACT. Our law firm focuses extensively on the creative arts industries and represents both manufacturers and individuals through counseling, registration and litigation. After a thorough review of the proposed Bill, the following comments are offered from a legal professional who would be "in the trenches" if this Bill were to pass.

Nullification of the Copyright Act of 1976
Artists relied on the provisions of the Copyright Act of 1976 that did not require them to place the copyright notice on their work in order for them to own their copyright. The additional provisions of this bill do not change the language of Section401(a). The Act clearly states that "copyright...subsists from its creation." The Bill does not state that this language will be changed to "copyright...subsists from its creation provided that you register, use the correct search terms, and can pay for it." This Bill puts a large requirement on individuals to register and use large amounts of financial resources to protect an artistic work.

Databases and Reasonable Search
Copyright registration continues to be the most accessible intellectual property protection available to the public. The fees are minimal and the forms understandable so that an average person could complete the task with relative ease. The proposed bill changes that premise. It is my understanding that the House Bill does not have a Private Database provision. While that is applauded, it still creates a terrible issue regarding the "reasonable search" requirements. Google databases and the internet are not sufficient nor are Artists required to register with them. Copyright Registrants will need to use carefully selected terms in order to insure that a work is able to be found. The expertise required will force registrants to seek legal counsel and other professionals at substantial costs in order to obtain protection. This makes a "user friendly" system inaccessible to many and then will create orphans because many will no longer be able to register their works.

Millions of artists relied on the provisions of the Copyright Act of 1976 that did not require them to use a copyright statement. The Artists who followed that law are now being punished and the new provisions in essence create an Ex Post Facto law that punishes the Artists for following a law in the first place. This is outrageous.

Reasonable Compensation & Relief
The majority of creative individuals do not make large sums of money. The term "Reasonable Compensation" opens the door for a significant amount of litigation. Highly qualified individuals disagree on what "reasonable compensation" would be on any given license. Daily our firm works with licenses and knows the complexity that goes into them. It is impossible to determine the value of a license without having the license actually go to full term. Allowing an infringer to only pay "reasonable compensation" would require an artist to wait for compensation and then would limit his or her abilities to exploit the art, as the art is already in use in public. For example, an infringing use of artwork on textiles would prevent the rightful owner from entering into a potentially far more profitable exclusive licensing arrangement with a manufacturer of his/her choice.

Litigation is expensive. Many artists are only able to bring such cases forward because of contingency arrangements made with a law firm. This type of litigation has not over burdened the court system nor has it been shown to be abused. This type of litigation permits an injured person his or her day in court. This Bill would remove such an opportunity. Not only would it remove any financial incentive for attorneys and artists to work together, it would also make it almost impossible to bring a case forward because of the heavy financial requirements placed on the artist. The financial (and technical) requirements of this Bill truly assume that an artist is "guilty of failing to comply until proven innocent" instead of the reverse.

Works Based on the Infringed Art
The most appalling and morally outrageous part of this Bill pertains to the registration of new works created from the infringed upon work and the prohibition of the injunctive relief if a work"... integrates the infringed work with a significant amount of the infringer's original expression." The US Courts have never adopted a bright line test in regards to the changes of an original work in order for the new work not to be an infringer of the old. This bill suggests that there is a rule for changing an existing work and making it a new work, yet it fails to state the exact rule.

Failing to specify a rule creates legal havoc. Not only does it create legal havoc, it causes substantial confusion to the public and requires significant money to be spent in order for a judicial body to determine what is a "significant amount."

International Implications
The global marketplace will become even more difficult to navigate because of this bill. International Artists' rights will be greatly compromised here in the US. This invites sanctions under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Furthermore, if a manufacturer were to rely on the US "Safe Harbor" for orphan works and ship the merchandising containing an infringing work to a Berne Convention country, the manufacturer could face stiff penalties for infringement as the Berne Convention does not recognize such a term as "orphan works" and states that copyright ownership is free from formality. The Berne Convention gives US Citizens the rights to protect their work in other countries, but this bill would mean that US Citizens may not be able to protect his or her own rights in their homeland if "formalities" were not followed.

Everyday Application
This Bill will take the copyright registration and enforcement out of the hands of the individual artists and place them squarely in attorneys' hands. It establishes systems to determine what is fair and what is reasonable in a field where individual facts and situations dictate the outcome, thus making "bright line" rules burdensome and unfair. The windfall for the legal profession will come at the cost of untold artists whose works will be free for the taking. Citizens will no longer be able to register their own copyrights without significant expertise or expense, and in fact this Bill essentially states that copyright registration is not sufficient to protect one's work. This Bill takes a piece of the government out of the citizens' hands and places it in the hands of a select few.

Furthermore, the Bill gives persons the opportunity to register their use of an Orphan Work, but it does not require any visual if available. The registry does not give a person full absolution and it is very possible that a company will open itself to liability if it cannot truly prove a "reasonable search" and that it complied with all the technicalities of the requirements. A cottage industry of attorneys tolling for opportunities will surely develop.

Useful Articles
The most difficult part of the Bill that will truly create the most legal difficulties comes to the term "useful articles." Useful Articles share such a broad definition that it could be a nightmare. The definition from 17 U.S.C. §101 states:
A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.
A picture on a wall portrays the appearance of the article, but it also decorates a room. Fabric is argued to be a useful article, yet there are functions that it is not a useful article and a mere decoration. The House of Representatives reliance of the definition used in the current law demonstrates a lack of understanding of the impact that this Bill will have and the legal havoc that it will create.

There are many emotional arguments against this Bill, but there are even greater procedural and legal issues that makes this Bill impossible for the average person to use.

Economic Impact
A prime example of an impact of this Bill that has not been considered is tourism. Rural Art Communities, Amish Crafts persons, and Artisan Communities will be dramatically affected by this. Most of these communities contain unsophisticated creators that bring about substantial tourism dollars to many economies. At this time, the only manner that many of these works are protected are under the current Copyright Law. Many of these works would be made orphans and subject to mass production. The charm, uniqueness and even financial incentives for creating unique, originals will be gone. The items created by these special creators would readily be available for the mass market without a cost effective and reasonable way for these creators to seek compensation.

Please know that our firm is willing to answer any questions that you may have or provide testimony on this matter at any time. We are a law firm that handles these issues on a daily basis. Our representation is diverse including famous brands, famous artists, manufacturers and those waiting to be discovered. I personally hold a Juris Doctor and a Master of Laws in Intellectual Property. We live copyright law on a daily basis and would see first hand what consequences this Bill would have on both sides of this issue.

Thank you for your consideration in this matter.

Sincerely,
Tammy L. Browning-Smith, J.D., LL.M
BROWNING-SMITH, P.C.

Also check out the information available at Orphan Works Opposition Headquarters.

May 29, 2008

Request for Clarity and Consistency in National Park Photo Rules

The rules about when a permit is needed to photograph in National Parks remains unclear. Even most park rangers have their own interpretation of the rules.

Despite attempts to clarify the rules and various legislative activities, the problems remain. But NPPA, ASMP, and others are are working together with the National Park Service to develop regulations that are "practical and fair to everyone involved."

Hooray!

May 27, 2008

You CAN Shoot Here and There!

Rajesh Thind of Open Network has produced an excellent documentary about the right to take photographs in public places in the U.K. Note that in the U.S., it is not illegal to photograph while on public transportation.

May 25, 2008

A Memorial Day Tribute


For Memorial Day weekend, the Weekly Photo Tips blog is honoring American soldiers with a beautiful slideshow.

May 23, 2008

Photographs of Useful Articles Not An Infringement

As discussed in my March 20, 2008, and March 16, 2008, blogs, the courts have been divided as to whether photographs of copyrighted works are derivative works. Similarly, William Patry discusses in his blog today Section 113(c) of the Copyright Act. It states:

In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.

As Patry explains, this statute is designed "to permit those selling lawfully made copies of commercial goods that may have some copyrightable element, like a label, to advertise the goods for sale without running afoul of the copyright law." Unfortunately, in the case reviewed, Patry believes that the court failed to consider this important law.

Accountants for Photographers - 5

Another accountant who works with photographers:

Robert A. Woloshen, CPA
Woloshen & Herman C.P.A.
Accounting and Tax Services
853 Broadway, Suite 1101
New York, New York 10003
Tel: 212-843-3486
Fax: 212-843-3493

E-mail: rawcpa(at)usa.net
www.rawcpa.com

If you know 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.

May 20, 2008

Urgent: Contact Your Representative About Orphan Works!

Announcement from ASMP posted with permission:

Tomorrow, Wednesday, May 21, the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a closed-door session on H.R. 5889, the orphan works bill. It is crucial that all of the protections for photographers that have been included in the current language of that bill stay in that bill, without change or erosion, and that nothing is added to the language that would be to our detriment.

Time is short, and it is essential that you act, and that you act immediately! We are asking those of our members whose Representatives serve on the Judiciary Committee to contact them immediately. Time is critical, so please send a fax or email as soon as possible. There is a sample letter that appears below, and on the ASMP website, that you can copy and paste, being free to edit as you like.

You can find who your Representative is at this website. When you click on his or her name, you will see a list of his or her committee memberships. If you see either "House Committee on the Judiciary" or "Subcommittee on Courts, the Internet and Intellectual Property" listed, please send the message that appears below. If your Representative does not serve on the Committee or Subcommittee, you need not take any action at this point. We will need your help later, but not right now.

Thank you for all of your support. We know that many of you have been eager to take action on the subject of orphan works legislation, and this is the time!

Todd Joyce
ASMP President

SAMPLE LETTER

Re: H.R. 5889. the Orphan Works Act of 2008

Dear (Mr./Ms.) __________________:

I am one of your constituents, a professional photographer, [if applicable - and a member of the American Society of Media Photographers (ASMP)]. I am writing to thank you for including many important protections for professional photographers in the current (May 20, 2008) language of H.R. 5889 and to urge you not to approve any changes to that language that would reduce those protections or in any way, directly or indirectly, be to the detriment of professional photographers. By way of example, the requirement that infringers must file a Notice of Use before using an orphan work and that all such Notices must be maintained in a "dark archive" are critical to protecting our interests under this Bill.

Orphan works legislation is entirely for the benefit of the user community at the expense of the copyright owner community, particularly the creators of visual artworks, such as professional photographers. The current language of the bill contains the bare minimum of what photographers need and can accept, and any reductions in the protections for photographers, direct or indirect, will make the legislation unfair, unreasonable and unacceptable.

The user community must realize that it is getting access to copyrighted works for free, so it is completely appropriate for its members to be required to comply with some administrative requirements. Similarly, the Copyright Office exists to serve both the public and the copyright owners, and it must be willing to comply with any reasonable changes in its procedures that would benefit both groups at reasonable cost.

The current language H.R. 5889 already erodes my rights under the Copyright Act. I urge you to protect my existing rights and not to allow any changes that would be to my further detriment in any way. Thank you for your time, attention and support.

Respectfully yours,
[your name]

Lessig Calls Orphan Works Legislation "Unfair and Unwise"

In his The New York Times Op-Ed today, Lawrence Lessig, Professor of Law at Stanford Law School and chair of the board of Creative Commons, states that the current Orphan Works legislation is "amazingly onerous and inefficient," "unfairly and unnecessarily burden[some]," and with "little return to the public." In sum, it appears that he doesn't like it. Neither do I.

May 17, 2008

ASMP Requests Call for Action NOW!

The Senate Judiciary Committee has approved a new version of its Orphan Works bill. However, because of important deficiencies, ASMP believes that photographers now should contact their senators to voice their opposition.

Find your senators'
name and contact information and send them a letter to express your concerns. Be sure to include this language:

I urge you to oppose this bill unless and until it is amended to contain at least the minimum provisions that are critical to protect photographers, including but not limited to a notice of use that must be filed before the use is made, upon penalty of losing eligibility to claim orphan work status for failure to file the notice; an archive of the notices, to be maintained by the Copyright Office or an approved third party; and other protections that appear in the current (May 15, 2008) language of H.R. 5889.


A sample letter has been posted on ASMP's website. We all need to work together to fight this one!

Photographers Protest for Mistreatment

Boingboing reports that photographers will gather on June 1 in Los Angeles to peacefully protest against the unnecessary treatment they have received from security guards, LAPD, and LASD while photographing in public places and on the Metro.

May 15, 2008

How To Keep Your Copyrights!

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 Shares Thoughts On Orphan Works

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

May 14, 2008

Sometimes You Have To State The Obvious


As photographers know, they often are asked what they are doing. Duh. With camera and tripod in hand, why would someone need to ask? But sometimes you have to state the obvious. Hence, one photographer has developed a line of clothing that declares "Photographer Working" in several languages. The designer, a commercial photographer, came up with this idea after many years of shooting when he constantly would have to field questions about who he was and what he was doing. Unfortunately, it makes sense, even when some don't demonstrate any.

May 13, 2008

The Fuss About Fair Use

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.

Additional Groups Voice Opposition to OW

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.

Update on NYC Wedding Photogs Bill and Tips for Tripod Permits

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!).

May 12, 2008

Photography With Tripods Is Not A Crime

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!

May 11, 2008

Accountants for Photographers - 4

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 know 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.

May 9, 2008

Update and Photo Attorney Interview on Orphan Works

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.

May 7, 2008

How to Add Metadata to Your Photos

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.

May 6, 2008

ALERT! Hearing Regarding NYC Wedding Photographers

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!

APA's Position on Orphan Works Act

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

Copyright Office Proposal to Mandate Electronically-Filed Group Registrations

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.

WTD - Model Animosity

May 5, 2008

Comparisons of the Different Orphan Works Bills

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.

SAA Speaks Up About Orphan Works

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

May 4, 2008

Photography Not Allowed - 6

Photo by Mark Harmel

Mark Harmel reports that he was detained last Friday by the Beverly Hills Police Department after taking the above photo while standing on a public sidewalk. These are the events that occurred (in his words):
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®

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May 3, 2008

Accountants for Photographers - 3 Plus!

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.