Photo Attorney

Jul 30, 2008

Alert: Is Microsoft Using Your Image?

Microsoft is sponsoring a contest looking for "Iconic Britain" images. The problem is that your photo may be entered without your permission. Get more information from the Pro-Imaging website.

Thanks to Bill Millios for submitting this alert.

"All the Fuss Over the Rights"

Scott Kelby of Photoshop Insider and NAPP are hosting a Worldwide Photo Walk. It looks to be a great event. The photographers with the best photos from the day also will win great prizes.

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

PDN has a full update on the situation reported on my May 31 and June 3 blogs where photographers have been prevented from shooting in Union Station. Kudos to everyone who testified for photographers' rights!!!

Terms to Make a Happy Face Very Sad

Techcrunch reported in June that Facebook had caught up with MySpace as the largest social network. Unfortunately, Facebook seems to be taking more than just a top spot for hits.

Specifically, Facebook's Terms of Use provide:

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

Photographers have many reasons to put watermarks on their images. Watermarks can deter infringement, provide contact information, and even provide for additional damages when the watermark is removed to hide an infringement - the fines start at $2,500 and go to $25,000 in addition to attorneys' fees and any damages for the infringement. See my July 3, 2007, blog for more information.

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

John Harrington has a great blog post offering suggestions to the many staff photographers who are about to have a forced career change to freelancer. One more thing to add to the new freelancer's "to do" list is to register your copyrights!

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

A digital photo frame is a great way to display your digital photos. You may easily update the photos shown and rotate the images. The newest model of the digital photo frame even allows you to view photos from the Internet. But someone else may get to see what you're showing in your frame, even when you don't want them to.

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.

When you use the ShogoLive Service to download photos from the Internet or transfer photos to anothers photo frame, you agree to the "Terms of Use." Unfortunately, the Terms of Use contains the following provision in section X.1.c.:
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:

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
Emphasis added.

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

As explained in my July 8 blog, to be eligible for statutory damages for copyright infringement you must have registered your photograph with the U.S. Copyright Office prior to the infringement or within three months of first publishing it. See 17 USC Section 412.

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

John Harrington has a helpful post on the status of and information about the Orphan Works legislation. In a press release, the Advertising Photographers of America, the National Press Photographers Association, the Stock Artists Alliance and Editorial Photographers have stated they cannot support the Orphan Works bills in their current form.

Jul 15, 2008

I Love New York! Photo Permit Rules Improved!

The New York City's Mayor's Office of Film, Theater and Broadcasting has revised its rules on public photography. No permit is required for still photographers with handheld camera and tripod unless you want exclusive use of City property. Background information on my July 4, 2007, blog. Great update report by Daryl Lang at PDN. Hooray!

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.
PhotoAttorney®

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Jul 12, 2008

Photography Not Allowed - 9

A man was arrested after taking a deputy sherriff's photograph during a traffic stop. As reported at Tricities.com, the American Civil Liberties Union explained "there is no law that prohibits anyone from taking photographs in public areas, even of police. Taking photos is protected by the First Amendment."

Jul 11, 2008

Update on James Brown v. Corbis

NPR's reported Cheryl Corley has an article and a report on the status of the James Brown v. Corbis case. See my March 31, 2008, and August 11, 2007, blog for background info.

Jul 8, 2008

Just To Be Clear - Registering Your Copyrights for Statutory Damages

To be eligible for statutory damages for copyright infringement (of at least $750 and up to $150,000 for willful infringements, plus costs and attorneys' fees), you must have registered your photograph with the U.S. Copyright Office prior to the infringement or within three months (not 90 days) of first publishing it (NOT from the infringement). See 17 USC Section 412:

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

Happy 4th!

Jul 2, 2008

Court Finds National Geographic CDs Don't Infringe Photographer's Copyrights

Yesterday, the U.S. Court of Appeals for the 11th Circuit issued its decision to vacate a $400,000 copyright infringement award for Jerry Greenberg against National Geographic Society in Greenberg v. NGS. The court heard the matter "en banc," where all of the judges of the 11th Circuit (instead of the original panel of 3 judges) weighed in on the ultimate decision.

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.