Photo Attorney

Aug 28, 2008

Photography Not Allowed - 14+

The Fox affiliate in the Twin Cities reports on a photographer who was handcuffed and detained for taking photos of police near the Minneapolis Police Department's special operations center. The police officer in the video admits that people are "absolutely" allowed to shoot photos on public property.

The Fox affiliate also reports in the video on three filmmakers from NY (who are documenting police abuse during the RNC) who were detained by Minneapolis police (who also confiscated their cameras for a day) for trespassing in a railyard.

Aug 27, 2008

Judge Requires That You Consider Fair Use Before Sending A DMCA Takedown Notice

As reported by John Harrington last week, a judge has ordered in the Lenz v. Universal Music case that copyright owners must consider whether an unauthorized use of a copyrighted work qualifies as fair use before sending a DMCA takedown notice (check my article how to do that). Although Universal Music argued in the Lenz case that fair use is difficult to determine, the court found that to not be an excuse.

Clearly, the DMCA statute requires that a takedown notice include:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

17 U.S.C. Section 512(c)(3)(A) (emphasis added). The Lenz court focused on the 5th requirement for its finding at issue here.

So what is a photographer to do when fair use is a tough call even for lawyers? Review the law as to what comprises fair use. My article on fair use should help. But as long as you have a good faith belief that the infringement is not fair use, you should be protected in your demand that infringing materials be removed from a website.

Photography Not Allowed (even for the big guys) - 13

The DNC provides another opportunity to restrict photography. ABC News reports that "Police in Denver arrested an ABC News producer today as he and a camera crew were attempting to take pictures on a public sidewalk of Democratic senators and VIP donors leaving a private meeting at the Brown Palace Hotel." ABC also has a video of the arrest.

Aug 23, 2008

Photography Not Allowed - 12

Tim Nelson of the Minnesota Public Radio reports on the increased restriction of photography as St. Paul prepares for the RNC.

Thanks to Larry Grace for submitting this topic.

Aug 21, 2008

Photography Not Allowed - 11 (But Apology Given)

As reported by and Freelance:U.K., Andrew Carter was arrested in Britain after photographing a police officer driving the wrong way on a one-way street. Although he was released a few hours later, Carter later complained of wrongful arrest.

The response? The officer apologized to Carter at a disciplinary hearing. The Deputy Chief Constable also apologized to Carter in writing:
"I would like to add my apologies. We expect the highest standards and [the officer] fell below what was required. His colleagues feel he let us down and he has learnt a difficult lesson. He realizes his actions were totally unacceptable and he could and should have apologized to you much earlier."

Perhaps the officer now realizes that it's sometimes easier to do the right thing than to ask for forgiveness.

Thanks to Amy Schubert for submitting this topic.

Aug 19, 2008

Another Way To Add Copyright Info To Your Photos

As a follow up to my August 2, 2008, blog, Ken Wronkiewicz provided a great alternate way to provide your copyright management information to protect your photos without interfering with the legitimate viewer's pleasure. The technique is described on Derek Powazek's website at his original post and a follow up post. In sum, Derek suggests that you attach your copyright notice to the bottom of a photo and use CSS to crop its view. When your photo is copied or hotlinked, the copyright notice appears.

Whatever the method, the end result is the same. Use the tool you like to protect your photos!

Aug 15, 2008

The Importance of Conditions In Your Free License

Photographers often allow others to use their photos without charge. They usually require a photo credit for marketing purposes or other restrictions. But if the user doesn't abide by those requirements, is it copyright infringement?

Such was the issue in the recent case of Jacobsen v. Katzer. There, Jacobsen had developed copyrighted software code for model trains but permitted others to use the software. Jacobsen's "open source" code included an "Artistic License" that required users of the software to include items such as the authors' names and Jacobsen's copyright notices. Katzer admitted that it had not followed these terms when incorporating Jacobsen's code into its own.

Jacobsen claimed that Katzer's use of the software without abiding by the terms of the License constituted copyright infringement. Katzer asserted that because it had not paid for the License and only breached "covenants" of the License, it could be liable only for breach of contract, not copyright infringement, likely resulting in fewer damages.

The 9th Circuit sided with Katzer. On appeal, the Court of Appeals for the Federal Circuit disagreed. The appellate court held that the terms of the Artistic License were conditions; without following them, Katzer had no right to use the software code. The Court explained:

The Artistic License states on its face that the document creates conditions: "The intent of this document is to state the conditions under which a Package may be copied." (Emphasis added.) The Artistic License also uses the traditional language of conditions by noting that the rights to copy, modify, and distribute are granted "provided that" the conditions are met. Under California contract law, "provided that" typically denotes a condition.
Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. . . . Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes rather than as a dollar-denominated fee, is entitled to no less legal recognition.

Of note, the Creative Commons Corp. filed an amicus brief to support Jacobsen's position because a negative ruling would directly affect CC licensing.

What can we learn from this? Always make the use of your photos conditioned on following your terms. Further, it's always best to put your license in writing, even if it's only an email, so a court will know exactly what were the terms and conditions of your license. Check with your attorney to make sure it's all done right.

HT to Likelihood of Confusion.

Aug 13, 2008

Legal Issues for Bloggers

Many photographers with a blog may wonder if they are at legal risk for their postings. John Hawkins from Right Wing News interviewed attorney Ron Coleman from Likelihood of Confusion for a non-political posting about potential legal issues for bloggers.

Aug 12, 2008

Photography Not Allowed - 10

Thomas Hawk reports on his blog the events that led to his being forced to leave the SF MOMA for taking photos. His words in his updated blog entry seem much too familiar to photographers these days:

I've seen people branded as pedophiles for shooting at public parks or their neighborhood swimming pool. I've seen people claiming 9/11 makes checking photography necessary. I've seen train stations and malls and shopping centers and museums and parks and public buildings and architecture increasingly turn against the photographer. And when this happens and when people see something that has happened to them at one point or another happening to someone else it resonates.

Kudos to those such as Thomas Hawk who are willing to defend their rights!

Thanks to Nathan Chilton for submitting this topic.

Aug 3, 2008

Using the DMCA Takedown Notice to Battle Copyright Infringement

Finding an unauthorized use of your photograph on the web is upsetting. One of the ways to protect your rights is to use the provisions of the Digital Millennium Copyright Act (DMCA). Check my new article at to find out how to send a "DMCA takedown notice" to stop infringements of your work.

Aug 2, 2008

Stop Unauthorized Use of Your Photos!

When you own the copyright to a photograph, you have the sole right to:

~reproduce the copyrighted work;
~ prepare derivative works based on the copyrighted work; and
~ distribute copies of the copyrighted work to the public by sale, rental or lending.

See 17 USC 106.

One of the ways infringers reproduce your image without permission is to "hotlink" to it. As defined by Wikipedia, hotlinking, (also known as inline linking, leeching, piggy-backing, direct linking, offsite image grabs and bandwidth theft) "is the use of a linked object, often an image, from one site into a web page belonging to a second site. The second site is said to have an inline link to the site where the object is located." While it's difficult to locate these infringements, you can find them by looking closely at your server logs.

Fortunately, there are ways to stop these unauthorized uses before they occur. Professional photographer, Walter Rowe, has a great article on how to Prevent Hotlinks To Your Images.

Also, Jackie Shumaker, a professional contruction and industrial photographer, has discovered how to remove your images from Google's image search. While you may want your photos included in Google's search for marketing purposes, there may be times when you need tighter control of them.

The Internet provides wonderful opportunities to display your photographs. Just make sure they show up where you want them to.