Photo Attorney

Jun 30, 2008

eCO - Online Registration of Copyright Claims

Beginning July 1, 2008, the US Copyright Office is offering online registration of claims to copyright. Online registration through the electronic Copyright Office (eCO) is the preferred way to register basic claims for literary works and photographs. Advantages of online filing include a lower filing fee ($35 instead of $45 per registration); the fastest processing time; online status tracking of your claim; secure payment by credit or debit card, electronic check, or Copyright Office deposit account; and the ability to upload certain categories of deposits directly into eCO as electronic files. To register your claim electronically, go to the Copyright Office website and click on the "Try Out Our New Online Registration System" in the left-hand corner.

Jun 29, 2008

Photo Contest Rules That Aren't Pretty

In partnership with the International Center of Photography, The New York Botanical Garden is sponsoring the "Moore in America Digital Photography Contest" "to capture the magic of Moore's massive works against the splendid backdrop of the Garden." While the Garden and Henry Moore's scupltures are beautiful, the photo contest rule that provides:

Lavender Field, Washington
"By participating in the photo contest, you hereby grant NYBG a nonexclusive, non-revocable license to edit, publish, use, adapt, modify, and license to others any image you submit"

ain't so much.

Thanks to Kenneth Salstrom for submitting this alert.

Jun 24, 2008

Lessons from Liz . . .

Liz Ordonez-Dawes, the multi-million dollar verdict winner, "hope[s] photographers are empowered by [her] news and take action." Liz was kind enough to share some important lessons she learned from her lawsuit:

1. Register all your images with the Library of Congress (US Copyright Office) in a timely and consistent manner. See the
tutorial on the ASMP website.

2. Have your contract reviewed by a copyright lawyer to address the loopholes. (Expressly prohibit use by anyone other than party named on your agreement and expressly exclude co-op ads, marketing & promotions, etc.)

3. Be prepared to respond in a professional manner and hold accountable every party using your property without authorization. This includes:
  • Establishing in advance business policies on how to manage each occurrence.
  • Not waiting for infringement to occur to establish a relationship with a Copyright attorney.
  • Using only an attorney who specializes in copyright law.
  • Accepting this process as a standard business policy, like collecting your State taxes.

Great words of wisdom and experience, Liz!

Interview of Leila Boujnane About TinEye

Jim Goldstein recently interviewed Leila Boujnane, CEO of Idee (TinEye's parent company), to discuss plans for the new image search engine. The podcast is available on Jim's blog.

Jun 21, 2008

Photographer Gets $12 Million Verdict!!!

Liz Ordonez-Dawes, an accomplished architectural and interior design photographer, recently was awarded more than $12 million dollars for copyright infringement of seven photographs. In brief, the court found that the defendants distributed Ms. Ordonez-Dawes' photos of high-end houses to various third parties for advertisements to sell the houses without authority and with knowledge that such act constituted copyright infringement. The court's Order provides some background of the case as well as the calculation of damages.

How did she do it? First, Ms. Ordonez-Dawes registered her photos with the US Copyright Office so that she was eligible for statutory damages for infringements. (Turns out, however, that the actual damages award was even better and you don't have to had register your photos with the US Copyright Office before the infringement to be eligible for actual damages.) Second, the defendants never filed a response (aka an "Answer") to the Amended Complaint, so they were in "default." In other words, the Defendants did not defend the lawsuit so that the allegations of the Complaint were deemed to be true.

The court then calculated the damages.
Under 17 USC 504(a), Ms. Ordonez-Dawes could choose between actual damages or statutory damages.

For actual damages, the Copyright Act provides at 17 USC 504(b):

The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
(Emphasis added.)

For the actual damages, the court held that "Plaintiff has demonstrated that she would have charged $58,760.00 for an unlimited, non-exclusive license to use the copyrighted works in question." For the profits, the court found:

Plaintiff has demonstrated Defendants' "gross revenues" to be $12,030,500.00. The Court finds a sufficient nexus between these revenues and the infringement of three of Plaintiff's works, because three of Plaintiff's copyrighted pictures were distributed by Defendants to be used in advertising to promote the sale of those properties. Those properties were then sold after the publication of the advertisements with the infringing copies of Plaintiff's works. This connection is sufficient to show a nexus between the revenues and the infringement. See Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 711 (9th Cir. 2004); On Davis v. The Gap, 246 F.3d 152, 160 (2d Cir. 2001).

In sum, the court found that the sales of the multi-million dollar houses were the "gross revenue" from the infringement. For one of the house photos at issue, the court explained:
Plaintiff provided Defendants with copyrighted pictures of a property located at xxxx Bay Drive, Pompano Beach, Florida. Defendants then distributed Plaintiff's pictures of this property to third parties, including Classic Realty Group, who then reproduced and distributed these images. Defendants sold the property located at xxxx Bay Drive, Pompano Beach, Florida, for $7,538,000.00 on May 19, 2005.
(Citations omitted; emphasis added.)

Because the defendants were in default, they lost the opportunity to demonstrate that elements of defendants' profits were attributable to factors other than the infringement of plaintiff's copyrighted works. Thus, the court deducted nothing from the gross revenues for the profit award. This added up quickly with multiple houses at issue.

Ms. Ordonez-Dawes could have elected the court's award of statutory damages per infringed work under 17 U.S.C. 504(c). Because the court found the infringements to be willful, she would receive $150,000 for each copyrighted work that Defendants infringed. Let's see, statutory damages of $1,050,000.00 for seven copyrighted works or $12,089,260.00 for actual damages and profits - no contest!!!

Congrats to Ms. Ordonez-Dawes for successfully protecting her work!

Thanks to Jackie Shumaker for the heads up about the verdict!

Jun 16, 2008

Wonders Will Never Cease! Lessig Continues Fight Against OW

Larry Lessig of Creative Commons has signed this online petition against Orphan Works legislation. Hooray!

Jun 13, 2008

Get Your Free Tin Eye Account!

Tin Eye, the brand new image identification-based search engine, has gratiously provided to Photo Attorney 50 free accounts for its readers!

TinEye does for images what Google does for text. Give TinEye an image and TinEye will show you where it appears on the web! Check this
Popular Photography article for more information on TinEye's services.

Becaue TinEye is still in the private beta stage, it has limited its number of accounts. But if you are one of the first 50 readers to send to photoattorney(at)gmail.com your name, snail mail address and email address, you'll get an invitation for a free TinEye account!
Sorry! All of the invitations are taken - now sign up directly with TinEye!

Thanks to TinEye for providing an additional way for photographers to protect their work!

Jun 11, 2008

Photography Not Allowed - 8

The Village Voice reports: Despite knowing that he didn't have to give up his film, commercial photographer Simon Lund acquiesced to a mother's protest and a police officer's insistence. Irrational fears strike again.

Jun 9, 2008

Battle of the Blogs Over OW

While I'm a long-time fan, the Art Law Blog again misses the point. My blog of June 5, 2008, states specifically:

" . . . for those photographers who register their photos with the Copyright Office, they also would have to register with the private registries to rebuff a potential OW defense and thus be eligible for statutory damages, the primary weapon that creatives have to fight infringements.

Thus, my argument against OW is not related to it being "a new attempt by Congress to coerce copyright owners into registering their works [with the US Copyright Office]."

But let's go with Mr. Zaretsky's example. How can a photographer know that she will be found with a "reasonably diligent search?" That term will be defined by each court based on the individual facts presented. Courts often disagree as to what comprises "reasonable diligence."

Mr. Zaretsky is correct: ". . . all the [private] database does is help [the photographer] defeat an argument that he couldn't be found with a diligent search. Take the database provisions off the table, and the proposed legislation is even worse for authors." No doubt. If we are forced to have OW, we need some way - perhaps with the private databases - to ensure that infringers can't use a work they claim to be orphaned when the owner still has rights. But copyright law as it exists today - without Orphan Works at all - is much better than any of these proposed options.

In sum, if a photographer goes to the trouble and expense ($35-$45 per registration) of registering her photos with the US Copyright Office, she won't want to risk not registering with the private databases, as well, since, under the proposed House Bill, that additional registration will guarantee (except for the current margin of error for electronic searching) that she will still be eligible for statutory damages.

Thus, I repeat: for those photographers who register their photos with the Copyright Office, they also will have to register with the private databases to rebuff a potential OW defense and thus be eligible for statutory damages.

Jun 8, 2008

All Good Things May Come To An End

When photographers start working with others, the excitement of the new business can make them think that they will never have a disagreement. Unfortunately, even the best relationships can fall apart. Take for example, the lawsuit against the drummer for the award-winning music group, Alabama. If it can happen to those who have had tremendous success, it can happen to you.

The best way to avoid heavy legal fees and controversy is by setting up the terms of the business by contract in the beginning, when things are cordial. A good start is Tad Crawford's book on "Business and Legal Forms for Photographers," available from Amazon by clicking in the "Recommended Reading" box in the right-hand column here. But it's always best to get an attorney to review your specific circumstances and tailor the contract.

Whatever you do in business, it's best to have a bit of pessimism when you are most optimistic.

Take my advice; get professional help.
PhotoAttorney®

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Jun 6, 2008

Learn About Contracts!

Contracts are the necessary evil for photographers in business. They are difficult to understand but vital to protect your rights.

Fortunately, help is available from The Kernochan Center for Law, Media, and the Arts at Columbia University. The Center's website, www.keepyourcopyrights.org, in addition to providing information on copyright law, helps artists to decipher the language of contracts that exploit rights in their works and to understand which terms are reasonable. The Center reviews actual contracts online.

Fabulous!

Find Your Infringements!

TinEye helps you find uses of your photos on the Internet. For free! Wonderful!

Thanks to Jackie Shumaker for submitting this topic!

Jun 5, 2008

They Still Don't Get It

Public Knowledge, The Art Law Blog, and others are supporting Orphan Works legislation by touting that "the orphan works bills would not require owners to take any steps not already required by copyright law to be eligible for copyright protection. . . . Owners are free to use [the private registry] services or not."

Free? Hardly.

While it is true that OW does not make registration with the private registries mandatory, registration will be required if photographers want the same protection for their works as they have now. Specifically, for those photographers who register their photos with the Copyright Office, they also would have to register with the private registeries to rebuff a potential OW defense and thus be eligible for statutory damages, the primary weapon that creatives have to fight infringements.

Currently, copyright infringement is a commonplace occurrence, even by major corporations that should know better. But perhaps the infringers do know better and are taking a calculated risk that the infringements won't be found, even with the possibility of having to pay statutory damages. Most of the excuses are laughable, but the infringers still don't want to pay for their "mistakes." OW will provide them another excuse - "we conducted a 'diligent search' for the copyright owner but could not find him." That's because the copyright owner took the advice of PK or ALB and didn't register with the private registries, because it wasn't required.

Even now, if a photographer does everything possible to protect her work - registers her photo with US Copyright Office, puts a watermark of her copyright notice on the photo and embeds meta data in the photo file with her contact info, disables right click on her website - her work is often infringed. All of these protections are easily overridden (an infringer can strip the metadata, clone out or crop the watermark, override the right-click disable). The photo that has been stripped of these protections can be distributed throughout the world in seconds, thus leading to "innocent" infringements. The potential to be awarded statutory damages is the last defense against unauthorized use. But the OW Act takes away the statutory damages option unless the photographer registers the work with the private registry/registries, as well. Moreover, there is no guarantee that the photo will be found on the registries because the current technology is not foolproof. Finally, registration with the private registries likely won't be free. Perhaps the proponents of OW will pay?

In sum, the current OW bills weaken the rights of creatives. So who really is under a misconception?

Photographers=Terrorists? Nonsense!

Bruce Schneier of The Guardian explores the real reason for the suspicions about photographers.

Thanks to Steven Joerger for submitting this alert.

Jun 3, 2008

One Man's Trash Is Another Man's Treasure

Famed artist Robert Rauschenberg recently sued artist Robert Fontaine claiming that Fontaine took items from Rauschenberg's trash and fraudulently sold it under Rauschenberg's name. Rauschenberg alleges he did not create the work.

Fontaine's attorney explained:
Robert (Fontaine) goes to the post office one day and sees all this junk piled up on the street. He pulls out of the trash three rolls of what are called chromes. The rolls had numerous 30-inch-by-30-inch sheets of what looked like negatives. All of a sudden it all dawned on him that this is Rauschenberg's, kind of, trash. The signatures on the pieces are apparently Rauschenberg's. It appears Rauschenberg threw this stuff away.

Generally, when you put your trash on the street, the items are considered abandoned for anyone to claim. Even the US Supreme Court has held that you have no privacy interest in your trash, so the police can go through it.

But under the Visual Artist's Right Act ("VARA"), an artist whose work meets the requirements can put limits on his work. Specifically, the author of a work of visual art -
(1) shall have the right -
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art
which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation . . .

See 17 USC Section 106(A).

For photographers, the VARA only applies to "a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author." Unfortunately, we will not know how a court would have ruled on the Rauschenberg case. Mr. Rauschenberg has recently passed away; his VARA rights ended with his death.

The moral to the story: if you don't want your "rejects" displayed, make sure they are destroyed!

p.s. The Copyright Office has a report on waiver of the VARA that includes some history and comparison of the VARA to other nation's "moral rights" protection for artists.

A Champion for Photographers - More on Union Station

Joel Lawson, the photographer who was interviewed about shooting in Union Station, reports on Congresswoman Eleanor Holmes Norton's (D-DC) reaction to the situation. A video of Congresswoman Norton's statement can be viewed here. Joel's blog provides an opportunity to show your support and thank Congresswoman Norton.