Photo Attorney

Sep 30, 2008

Alert: Oosah Gives and Oosah Takes Away

Oosah provides a "free" terabyte of storage to manage music, photos, and websites. Unfortunately, under the Terms and Conditions, Oosah takes a "free" license of your content at the same time.

9. Rules Governing Posting Content on Oosah

c. Ownership of Content: You retain all ownership rights in your Content. However, by posting Content to Oosah, you automatically grant, and you represent and warrant that you have the right to grant, to Oosah (and its successors) an irrevocable, perpetual, non-exclusive, assignable, royalty free, worldwide license to use, copy, perform, display, distribute and to prepare derivative works of such Content in connection with the Site and any current and future services offered by Oosah, and to grant and authorize sublicenses of the foregoing.
Emphasis added.

While Oosah needs a license to perform its services, this license goes too far.

Thanks to Gregg Wood for submitting this alert.

Sep 27, 2008

URGENT ACTION Needed to Fight Orphan Works

Instead of addressing the financial crisis, the SSA reports that the Senate passed its Orphan Works Bill (S2913) yesterday. We now need to ask the House Judiciary Committee to not fold their own bill (HR5889) and to not adopt the Senate version.


The Illustrator's Partnership provides an easy way to contact your Representatives.

Sep 25, 2008

Q&A - When Is Your Copyright Registration Effective?

Q. I sent my images to the Copyright Office earlier this year. The mailing service confirmed delivery and my check for the registration has cleared. I've since found that one of the images has been infringed. Can I get proof from the Copyright Office that all of the images were received and registered properly? When is my copyright registration effective?

A. The Copyright Office is running behind on registrations, so it can take 8-9 months to receive your certificate from the Copyright Office if you registered using the "old-fashioned paper" way. [Note: The online registrations through eCO are taking only a few weeks.] You will not receive an acknowledgment that your application has been received because the Office receives more than 600,000 applications annually.

The Copyright Office will provide written information about the status of applications that have been in the Copyright Office less than 6 months for a fee. Contact the Certifications and Documents Section at (202) 707-6787 to get the process started. If you sent the registration more than 6 months ago, the Copyright Office will do an in-process search without charge to determine why the certificate has been delayed.

Nevertheless, a copyright registration is effective upon receipt by the Copyright Office. "A copyright registration is effective on the date that all the required elements (application, fee, and deposit) are received in acceptable form in the Copyright Office, regardless of the length of time it takes the Copyright Office to process the application and mail the certificate of registration."

You have three years to sue for copyright infringement. So you may wait until you get your registration certificate from the Copyright Office to seek damages for copyright infringement. Registering your images is the right step to take in protecting your work!

Sep 23, 2008

Protecting What's Yours!

Check out the great article by Rob Sylvan in the October 2008 issue of Layers Magazine. Rob has lots of good suggestions on how to protect your copyrights!

Sep 21, 2008

Alert! Photographers Will Be Questioned For Taking Pics of Train reports that a photographer was questioned by police "for standing on the platform with a camera in hand" next to a train. Huh?

The TSA representative explained that it's ok to take photos of the train, as long as you aren't:

taking photographs of the way the train operates, in the sense of what kind of controls it has, the undercarriage of the train, the tracks, the way they are set up and how the train is rolling, switches. Unless they're going to be building a train, which I don't think they will, that's going to raise some suspicious nature," he said.

The news station reports from its interview of the TSA rep that if a person is caught taking such photos, "they'll be questioned by police" and "their name could also be turned over to the Department of Homeland Security."

The Standard Examiner reports: "Utah Transit Authority police say the names of two people taking suspicious pictures also have been referred to the FBI's Joint Terrorism Task Force since FrontRunner service began in April."

Note that even taking photos of the operations, controls, and undercarriage of a train is not illegal as long as you're not trespassing. As reported by the Standard Examiner: "If the person chooses not to talk to the officer, they can leave UTA property. The officer can't compel them (to provide personal information) unless there is a reasonable suspicion that there's a crime of some sort," Ross Larsen, chief of UTA police, said. "The person has their free right to not answer questions and walk from UTA property."

Check Bert Krages' Photographer's Right flyer and his book, "Legal Handbook for Photographers" (available through a link in the "Recommended Reading" section below, right-hand column) for more information on your rights.

Thanks to Don Millbranth and Cody Hilton for submitting this topic.

Expectation of Privacy in France

A French appeals court ruled that a photographer violated Princess Diana and Dodi Fayed's expectation of privacy by taking photos of them kissing while they were on a yacht. The photographer's attorney said "the ruling is extremely questionable legally . . . we have high hopes that the supreme court will overturn this strange ruling." A US Court likely would have come down differently (compare the case discussed in my September 18 blog).

Trademarks in Art - Another Controversy Arises

The Washington Post reports on another incident where an artist is asked to remove trademarks from his painting. The dispute arose after Jason Swain painted a tribute to Sean Taylor, the Washington Redskins football player, who was shot last November.

Swain's Painting at Issue

The issue as to whether artists may include trademarks in their work is unresolved. Sadly, "Swain is afraid the Redskins will take legal action against him, so he has consulted with an intellectual-property lawyer and taken the painting off the market." As previously reported in my February 20th blog, Daniel Moore continues his fight for the same.

Sep 18, 2008

"Reasonable Expectation of Privacy Issues" for Photographers

As discussed in an earlier blog, privacy issues can be divided into four areas. The first area, invasion of privacy, generally occurs for photographers when taking the photo.

But you violate someone's "right of privacy" only when that person has a "reasonable expectation of privacy." As put forth in the Restatement of Torts 2d, Section 652B, a violation occurs with:

"The intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns that would be highly offensive to a reasonable person." Each state may adopt this section in whole or in part.

The use of the term "highly offensive" is key. When someone is in public, even if on private property with limited access, that person likely doesn't have an expectation of privacy.

Take, for example, the case, Furman v. Sheppard, from Maryland. Furman had sued Sheppard for personal injuries. Sheppard trespassed onto private property at the Maryland Yaught Club to videotape Furman while he was on a boat. Furman thus claimed Sheppard violated his expectation of privacy. The court disagreed.

While the court considered the fact that Furman's expectation of privacy was reduced because he had filed a lawsuit against Sheppard, the court also evaluated other important factors to find that Furman did not have a reasonable expectation of privacy, such as:

"an individual's reasonable expectation of privacy reaches its zenith in the home."

"business and commercial enterprises generally are not as private as a residence . . . although a club operated for a select clientele may not be public, 'the fact that the premises are maintained as a club with a membership policy is not conclusive in favor of the club. Failure to enforce limitations on admittance would warrant the conclusion that the persons operating the club had no reasonable expectations of privacy."

"appellant's activities could be observed by passers by. To this extent appellant has exposed [himself] to public observation and therefore is not entitled to the same degree of privacy that [he] would enjoy within the confines of her own home."

A person's expectation of privacy is specifically defined by each state, but each state's privacy standard is similar to the Restatement section cited above. To be sure of whether your photography activities violate another's expectation of privacy, check with your attorney.

Sep 13, 2008

Proof That Delivery Memos Are A Good Thing

Many photographers use "delivery memos" to accompany their photos when delivered to a client. While the traditional delivery memo is less important today with digital files, the "Terms and Conditions" of your license are vital.

Fortunately, photographer Wolfgang Kaehler used delivery memos when sending his photos to Meredith Corp. The company lost 2,300 of his images. After Kaehler demanded $200,000 for his loss, Meredith filed suit to ask the court to "rule that Meredith was not bound by the terms of two "delivery memos" submitted by photographer Wolfgang Kaehler as part of work he did for a Michigan promotional magazine in 2004 and 2005." The suit was resolved by settlement four days later. More information is available in The Des Moines Register article.

Congrats to Kaehler for protecting his work!

Thanks to Ryan McGinnis for submitting this topic.

Alert: NW Airlines Takes "All Rights" To Your Photos

Northwest Airlines is sponsoring a "World Traveler Photo Contest."

The prizes are nice:

Grand Prize:
The grand prize in each category will be two World Business Class tickets to join travel journalist Rudy Maxa at an upcoming location for his public television show, Rudy Maxa's World. Winners will photograph the destination, and their photos will be used in the DVD packaging for that episode of the show.

First Runners-Up:
One NWA World Vacations trip certificate valid for an air and hotel package ($1,200 value).

Second Runners-Up:
Two coach tickets to any domestic NWA destination.

Unfortunately, just by submitting your photos to this contest, you "convey[ ] all rights to the photo to Northwest Airlines, Inc." (Note: in one place, the terms & conditions state that only the rights to the winning photos are conveyed; however, the photographer must check the box next to the statement that says "Submission conveys all rights to the photo . . . ."

At least the "rights grab" are listed on the main webpage instead of buried in the fine print.

Thanks to Ed Selby for submitting this alert.

Sep 9, 2008

Great Legal and Accounting Resources for Photographers!

Most states have Volunteer Lawyers and/or Accountants for the Arts ("VLA")organizations. As in New York, they serve "low-income artists and nonprofit arts organizations. VLA's many other programs are more widely available to the entire arts community."

Each VLA organization provides a variety of services, such as a lawyer referral service, free legal clinics, mediation and arbitration, wills drafting, and a speaker program in Georgia. St. Louis' VLA's website provides a list of helpful publications and other great links, including other states' VLAs.

Find a VLA near you by searching on the Internet for "Volunteer Lawyers for the Arts" and your state. Some VLAs, such as those in Kansas City and Massachusetts also provide accounting services.

While the areas of law and accounting are not as fun to learn about as flash synch speed and calculating depth of field, they are necessary to the successful photography business. Fortunately, the VLA organizations make it cheaper and easier for photographers to acquire that information.

Sep 6, 2008

"Free Use" of People, Places and Things in Photographs

Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Clinic at American University Washington College of Law has prepared a great list that explains when you don't need to be concerned about releases or fair use.

While the list was written for filmmakers, photographers can use this list, as well.

Sep 4, 2008

Alert: German Version of Chrome Still Has Old EULA!

Robert Kneschke reports that the German version of the EULA still is a translation of the first English version:

11.2 Sie erkennen an, dass diese Lizenz Google dazu berechtigt, die Inhalte anderen Unternehmen, Organisationen [...]

Sep 3, 2008

How to Add Your Copyright Info to Your Photos Using Lightroom

Check out David Ziser's blog entry at Digital Pro Talk on how to quickly add copyright information to your photos as suggested by Nicholas Viltrakis.

Report: Google Changes "Chrome" License Agreement After Complaints

Google Chrome is a new web browser "that combines a minimal design with sophisticated technology to make the web faster, safer, and easier." Unfortunately, the first "EULA" (End User License Agreement) for Chrome stated:

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

. . .

1.1 Your use of Google's products, software, services and web sites (referred to collectively as the "Services" in this document and excluding any services provided to you by Google under a separate written agreement) is subject to the terms of a legal agreement between you and Google.

Fortunately, as reported at Ars Technica, Google revised its terms of service in response to concerns. Section 11 now states:

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services.

Congrats to all that actually read the fine print!

Thanks to Joel Jameson and Ron Pluth for submitting this topic.