Jul 30, 2008
"All the Fuss Over the Rights"
Several photographers wisely read the original Terms and Conditions of Use for the contest. The terms originally stated that:
Any Submission received through this Site will be deemed to include to Us a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, republish, transmit, disseminate, distribute, perform, and publicly display all content, remarks, suggestions, ideas, graphics, or other information in the Submission, in whole or in part, without additional approval, to incorporate any Submission in other works in any form, media, or technology now known or later developed, in connection with this Site and Our affiliated web sites and publications. We will not be required to treat any Submission as confidential.
We provide no compensation for Your Submission or for Our use of a Submission. We will not sell individual reproductions of your Submission. We assume no responsibility or liability for the timeliness, deletion, delivery failure or failure to store images.
These terms caused a stir on the Photoshop Insider blog. Some were offended; others were not concerned.
The terms have been updated and are more photographer friendly. The terms now provide for:
a) One (1) year usage rights and permissions to use, re-use, publish, and re-publish your winning image(s) you created, or reproduction hereof in color or otherwise, made through any and all media now or hereafter known for illustration, art, promotion, advertising, trade, or any other purpose whatsoever.
b) You also permit the use of any printed material in connection therewith.
While the terms still allow use of your photo for "promotion, advertising, trade, or any other purpose whatsoever" they are improved from a RF license forever.
What can we learn from this? You may not care that someone takes a license (or in some contests, a complete transfer of your copyright) of your image to use for commercial advantage. We certainly trust Scott Kelby and NAPP to not misuse any license. But other organizations are not so caring.
You may choose to give your rights away, but at least you should know what you're giving up. In the end, however, you might think differently when you find your photo used in a way you didn't expect. You might then wish you had made a fuss.
Thanks to Andie Smith and Lori Carey for submitting this topic.
Jul 24, 2008
Photography Not Allowed - 7 Update
Terms to Make a Happy Face Very Sad
By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.Emphasis added.
Fortunately, Facebook recognizes that "you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content" and that the license you granted above expires when you remove your User Content; however, Facebook keeps the right to "retain archived copies of your User Content." Wonder why.
Next time you decide to keep up with your friends on the Internet, be sure to read the terms of your socializing activities. They may not be so friendly.
Thanks to Nathan Chilton for submitting this alert.
Jul 23, 2008
How to Put a Watermark on Your Photos
But how you put a watermark on your photos is important for search results. John Harrington has a great blog post on search engine optimization for your images. He quotes Grover Sanschagrin: "Search engine providers have told us that heavily watermarked images provide a 'poor user experience,' and they receive a lower search ranking or are not included in search results at all."
So put a watermark on your photo and do it right for the best results.
Jul 21, 2008
One More Thing For The New Freelance Photographers
As a staff photographer, the copyrights to your photos belonged to your employer. Now, you own what you shoot. Because the odds are that your copyrights will be infringed, protect your work by registering all of your photographs.
The US Copyright Office website provides good information on how to register your copyrights. Check my earlier blogs and articles for additional information: eCO - Online Registration of Copyright Claims, Evaluating eCO - Electronic Copyright Registration, How to Register the Copyrights for Your Photographs, and Posting Photos on Website = Published?.
With these great tools, you will surely succeed!
Jul 20, 2008
Alert: Digital Photo Frame Company Takes License of Your Photos and More
The Shogo digital photo frame is a cool device that uses WiFi or Ethernet to connect to your modem to access the Internet. It lets you set up photo albums online for others to view on their digital frames. You can view photos from photo portals such as Flickr, Picasa, SmugMug, .Mac and even subscribe to RSS feeds. It's a great idea.
By submitting, uploading, posting or displaying Content on or through ShogoLive, you hereby grant RealEase (and its successors and assigns) a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, transferable licence under your copyrights or other intellectual property rights in such Content to:Emphasis added.
i. reproduce, adapt, distribute, display, publish, create derivative works from, and use such Content in any manner (in whole or part) without any duty to account to you through the ShogoLive (including but not limited to RSS or other content feeds offered through ShogoLive) and other RealEase's services
While Shogo needs a license to run your photos through its system to display them to your intended viewers, this license allows for additional uses.
Shogo at least provides that:
Subject to RealEase's then current Content-related policies, you may remove the Content you have uploaded or posted on or through the ShogoLive from time to time. After the relevant Content is removed from ShogoLive, RealEase will use its reasonable endeavours to cease to use such Content (under the licence granted under this section) within a commercially reasonable period.Emphasis added.
But the term that is absolutely not justified is asserted in X.1.e.:
RealEase may also use, without compensation to you, any ideas, concepts, know-how or techniques contained in any communication you send to the ShogoLive for any purpose whatsoever, including but not limited to, developing, manufacturing and marketing products using such information.
Sharing your photos can be wonderful. Just be careful who you share them with.
Thanks to Matt Forrest for submitting this alert.
Jul 18, 2008
Just to Be Clearer - Registering Your Copyright BEFORE the Infringement for Statutory Damages
Because the statute does not allow for statutory damages when "any infringement of copyright in an unpublished work commenced before the effective date of its registration," then you don't have the 3 month window to register your photograph after an infringement when the infringement is the first publication or use of your image.
Jul 17, 2008
Update and FAQ on Orphan Works
Jul 15, 2008
I Love New York! Photo Permit Rules Improved!
Five Great Resources to Help You Set Up Your Photography Business
Everyone loves to take pictures! As a professional photographer you work hard to learn about depth of field and chromatic aberration, but what do you do when you want to start your own photography business? Fortunately, there are many great resources to help.
1. The IRS website - taxes are the most unpleasant issue, but at least it's easier today to learn about them. The IRS website is surprisingly user-friendly. The business section addresses subjects such as how to start and operate a business and includes a special section on small and self-employed businesses.
2. Your state's secretary of state website - each state has a website directed to topics such as establishing and registering your business and state tax requirements. Check my October 7 blog on how to find your state's website.
3. Your county's website - many county governments also have websites so that you can learn about the requirements to operate a business in the county. Conduct an Internet search on your county's name to find it. For example, here's the website for Los Angeles County, California. Click on "business" to find information on licenses and how to register your "fictitious name," also known as your "doing business as" (when you operate your photography business under a name other than your own or a state registered corporation or company).
4. Your own CPA - even with these great resources, it's still difficult to know how to organize your business and pay your taxes. Find your own CPA to help you with those issues. Several accountants who specifically work with photographers have been recommended on this blog, such as Howard Choder. Use the Google search function in the right-hand column on this blog to locate them or check with photographers in your area.
5. Your own lawyer - despite the plethora of legal advice available from web forums, your legal circumstances are unique. The legal answer that worked for one photographer may not work for another. Find an attorney who can help you with your specific legal concerns. You may find attorneys who practice in intellectual property (including copyright and trademark law) using martindale.com or get referrals from photographers in your area.
Also check out the books recommended in the right-hand column for additional education on these topics.
While the business of photography is not as fun as photography itself, fortunately there are good resources to help you so that you can get back to shooting.
Take my advice; get professional help.
Technorati Tags: photography business
Jul 12, 2008
Photography Not Allowed - 9
Jul 11, 2008
Update on James Brown v. Corbis
Jul 8, 2008
Just To Be Clear - Registering Your Copyrights for Statutory Damages
Section 412. Registration as prerequisite to certain remedies for infringement
. . . [N]o award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for -
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
Don't risk it! Register early and often!
Jul 4, 2008
Jul 2, 2008
Court Finds National Geographic CDs Don't Infringe Photographer's Copyrights
By a close vote of 7-5, the 11th Circuit closely followed the Supreme Court's analysis of Section 201(c) of the Copyright Act in Tasini v. New York Times, 533 U.S. 483 (2001), finding that CDs of previously published National Geographic magazines were "revisions" and not new works, despite the addition of new copyrightable elements such as an introduction and search functions. Although Greenberg wanted to be paid additionally for the use of his photos in the CDs, the Court found that NGS' use of the photos in the CDs was included in his initial license to NGS. My Sept 6, 2007, and June 16, 2007, blogs provide some history of the Greenberg case.
Judge Birch's dissenting opinion is twice as long as the majority's opinion. A scholar in copyright law, he is a clear advocate for artists, noting that "the 1976 Copyright Act was supposed to reverse two hundred years of publishers' exploitation of authors under the 1909 Copyright Act." Judge Birch also recognized that, "At the end of the day this case is not about education, access by the masses, or efficient storage and preservation - it is about who gets the money," finding that "the profits are enhanced exponentially when the publisher can exclude the contributing artists, authors, and creators of the content from sharing in those profits."
As explained in my June 25, 2005 blog, photographers who submit photos to publishers for inclusion in a book or magazine retain their copyright in the photos unless the copyright is specifically transferred in writing to the publisher. The publisher's use of those photos is limited by the license agreement. The publisher, however, creates a new copyright, called a "collective work," when your photos are combined with other photos, text, illustrations, etc.
As the owner of the copyright in a collective work, the publisher may reproduce and distribute your photos as part of that particular collective work, but not as a separate item. The publisher also may distribute any "revision" of that collective work. While a "revision" is a new "version," it still is considered to be the same work. When this law is applied to the Greenberg case, the 11th Circuit Court found that the NGS CDs are the same work as the magazines. Thus, NGS does not have to pay Greenburg for using his photos in the CDs.
The dispute still is not over for Greenberg. His case will be remanded to the Southern District Court of Florida to determine other issues. For example, Greenburg still has a claim against NGS for using one of his photos during an introductory montage for the CD. While the outcome of this particular issue on revision is not what we hoped for, Greenberg is to be commended for fighting for photographers' rights.