Photo Attorney

Oct 27, 2008

Great Blog Entries on Photographers' Legal Rights

Check out Michael Johnston's blog entry at The Online Photographer and Geoff Fox's post at AppScout where they discuss issues related to and resources for photographers' legal rights.

Also check my response to a letter to the editor in Popular Photography Magazine's November 2008 issue, pg. 10, about whether a photographer may take and distribute pictures of children at a neighborhood block party.

Outdoor Photographer May Use Photo Contest Entries for Advertising Purposes

Outdoor Photographer is sponsoring a photo contest on "Nature's Colors." The grand prize is a D-SLR of your choice: a Canon EOS 50D, Nikon D300, Olympus E-3, Sony A700, or $1,500 cash plus publication of the winning photo in the March 2009 issue of Outdoor Photographer. Sweet!

Alas, the rules of the contest provide that:

By submitting an entry, entrant grants Sponsor and its designees an irrevocable, royalty-free, non-exclusive, worldwide perpetual license to use the entry and his/her name . . . in Sponsor's online galleries, without further compensation, notification or permission . . . . In addition, each winner grants to the Sponsor and its designees an irrevocable, royalty-free, non-exclusive, worldwide perpetual license to use and distribute the entry [(as submitted, or as cropped by Sponsor)], and his/her name . . . in any and all media now or hereafter known . . . for purposes of advertising and promoting Sponsor . . . without further compensation, notification or permission, unless prohibited.
Emphasis added.

While not as fun as winning a great camera or cash, it always pays to read the fine print of contests so you know what you're giving for what your getting.

Thanks to Steve Callahan for submitting this alert.

Oct 21, 2008

Alert: Nature Conservancy Takes Your Copyright Exclusively

The Nature Conservancy is a wonderful organization. It's running a photo contest for a 2010 calendar to raise funds to support The Hasssayampa River Preserve - a noble cause. Thirteen winners get annual passes to the Nature Conservancy's Hassayampa, Ramsey Canyon, and Patagonia-Sonoita Preserves plus a photo credit.

Unfortunately, under the rules of the contest, the Nature Conservancy not only gets to use your photo in any way it wants, you don't get to use it at all!

8. All entries shall become the exclusive property of The Nature Conservancy to be used solely as it determines, including printing the winning photo in the Hassayampa River Preserve's newsletter, on its websites and in its publications, or using the photo in conjunction with the logos of The Nature Conservancy and its partner organizations. Winning photographers may not sell or use these images in any way.
[Emphasis added.]

It's great to support important causes such as this. Just understand what it means for your photography rights.

Thanks to David Rogers for submitting this alert.

Oct 20, 2008

Greenberg Continues Battle Against NGS

As previously reported, photographer Jerry Greenberg lost his fight against National Geographic in the 11th Circuit Court of Appeals when the court held that that CDs of previously published National Geographic magazines were "revisions" and not new works. 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.

Greenberg now has filed a Petition for Writ of Certiorari with the US Supreme Court, asking the Court to clarify the holding in New York Times v. Tasini, 533 U.S. 483 (2001), regarding a similar issue of written works. Greenberg claims that the 11th Circuit inaccurately applied the Tasini case to his, wrongfully resulting in a ruling against him.

The US Supreme Court does not have to hear the matter. "Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons." Rule 10, Rules of the U.S. Supreme Court. However, a denial of "cert" does not mean that the Supreme Court agrees with the 11th Circuit. Hopefully, the Supreme Court will recognize the importance of Mr. Greenberg's issue.

Oct 19, 2008

He's Not Horsing Around

But who owns the copyright?

Oct 18, 2008

Will I See You In Court? DPP Article Discusses Infringement Disputes

Check out the article by Attorney Samuel Lewis in this month's issue of Digital Photo Pro. Mr. Lewis discusses the pros and cons of copyright infringement lawsuits and various strategies to defend your work.

Note that the minumum that a court may award for innocent infringement is $200 (and $0 for innocent infringers who are employees or agents of a nonprofit educational institution, library, or archives acting within the scope of his or her employment). See the complete statute at 17 USC 504(c)(2). Further, the title of the Internet article ("Copyright Your Images") is different than the print version and is misleading. Compare the difference between "copyrighting" vs. "registering" your photos in my previous blog.

Oct 17, 2008

Flattery Will Get You Nowhere - New Website Takes Broad License of Your Photos


Tim Darby is a great photographer who received this email full of compliments:
Dear Tim,

I am writing to you on behalf of Fanbase, Inc. . . . I found your photos of the Jaguars on Flickr and you are clearly one of the best Jaguars photographers on the web. . . . After scouring countless websites, we have chosen you and a handful of other superlative Jaguars experts to be the Founding Members of our service. . . .

Specific benefits include:

* Exposure - Be one of the first users to contribute content, to gain distribution for your work, and to build a base of subscribers.

* Influence - Preview early features, participate in product planning sessions, and regularly share your feedback with the company.

* Recognition - Earn the permanent title of "Founding Member" in acknowledgment of your role in helping to launch the service.

* Connection - Join a select group of your peers in building a definitive source of information for sports fans around the world.

* Permanence - Showcase your old and new content on a website that celebrates both past and present as living sports history.

We would be honored if you accept our invitation. Just visit [our website page] to create an account and access the preview release of our website.

. . .

Best regards,
[Name withheld]

Who doesn't want exposure, influence, recognition, connection, and permanence? Unfortunately, pay for use of Tim's photos is not one of FanBase's benefits. Instead, the Member Agreement for Fanbase provides that:

Content. You retain ownership of your content, but we may, without compensation, publish your content on our site and elsewhere and republish your content (or extracts of it) to promote our site. We or other users may edit or remove your content, and we may not be able to update or stop publishing your content if it's edited or removed. [Emphasis added.]

That's an invitation Tim won't RSVP.

Oct 15, 2008

Q&A - Copying Contract Language

Q. I need some contracts to use in my photography business. May I copy the language of agreements I find on the Internet or from friends?

A. Under Section 102 of the Copyright Act, copyright protection subsists . . in original works of authorship fixed in any tangible medium of expression . . . [including] literary works . . . ." Therefore, writings generally are protected by copyright law, just as are photographs.

But under copyright law, ideas are not protected - only the expression of those ideas. See Section 102(b) - "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.")

Many contracts contain language for which there are limits in the number of ways the ideas can be expressed to such extent that the expression can be considered to "merge" with the underlying idea. Known as the "merger doctrine," the law states, in effect, that if there are few ways to say it or do it, then copyright law does not protect the expression of the idea. [To see how this applies to photographs, review Nancy Wolff's PowerPoint presentation on copyright law, beginning with slide 37, "Idea vs. Expression"). For additional information, review Lewis R. Clayton's article on the merger doctrine.

In some instances, you may be given an implied or actual license to use a contract, such as those provided in books you purchase or are provided at workshops. Check Tad Crawford's book, Business and Legal Forms for Photographers, for a great source of contracts. Furthermore, reviewing and comparing several contracts may help you understand the different provisions and suggest what protections you need.

In sum, it's always risky to copy verbatim another's work and it's always best to ask your attorney to prepare contracts that fit your specific needs. Your lawyer then can determine what can be copied from other contracts.

Take my advice; get professional help.
PhotoAttorney®

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Oct 10, 2008

FREE Video on Copyright Law!

PACA has posted a video of Attorney Nancy Wolff talking about copyright law. View it for free on PACA's website. The video is part of the Jane Kinne Copyright Education Program, named in memory of the stock agency pioneer who died last year.

"Close, But No Cigar" For Orphan Works Bill

Public Knowledge reports on the recent events related to the attempt to pass the Orphan Works Bill. It was too close for comfort.

Oct 7, 2008

Update to Smush.It! Yahoo Responds to Photographer's Concerns

David Friedman contacted the developers of Smush.it last week to let them know that Smush.it harms photographers and causes inadvertent DMCA violations by people who don't know better. David reports:
"They were very sensitive to the issue and responded right away, promising that an upcoming revision of Smush.it will strip out extraneous metadata while keeping the copyright metadata intact. In the meantime, they have notified me that Smush.it has been revised so that it now saves ALL metadata, even though it temporarily makes their utility less useful. It should be noted that they have been very receptive to feedback and are being proactive in making sure artists and photographers are not inadvertently harmed by their product. . . . They deserve credit for reacting so quickly and doing the right thing."

Kudos to David and Yahoo!

Why You Should Add Metadata To Your Photos

As previously reported in my July 3, 2007, blog, the DMCA is a powerful tool to fight infringements. With the possible passage of the Orphan Works Act, it's even more important to include your copyright management information.

Copyright management information includes:

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.

. . .

(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.

. . .

(6) Terms and conditions for use of the work.

(7) Identifying numbers or symbols referring to such information or links to such information. . . .

See 17 USC 1202(c).

You can put your copyright management information in the metadata of your photos or as a watermark (as shown in the bottom left corner of my photo above). See my May 7, 2008, blog to learn how to add metadata to your photos. Sometimes, however, watermarks aren't appropriate.

Unfortunately, it's easy to remove the metadata from your photos. Check my November 20, 2007, blog entry on how it can happen with Photoshop. John Harrington explains in his blog how Yahoo now provides a vehicle to strip your metadata.

But that's not a reason to not include your metadata in your photos! On the contrary, the damages for an infringer who intentionally removes or alters your copyright management information knowing, that it will induce, enable, facilitate, or conceal an infringement start at $2,500 and go to $25,000. That's in addition to the damages for copyright infringement, as well.

While Yahoo's "Smush It" and the Orphan Works Act may hurt photographers, we can employ self-help tools to do a fairly good job in fighting infringers.

Thanks to Walter Rowe and Jackie Shumaker for submitting this topic.

Oct 4, 2008

Alert: UPromise Photo Contest Expects Too Much

UPromise is sponsoring a "Home for the Holidays" photo contest. The grand prize is a new car! Unfortunately, the rules of the contest state that:

. . . by submitting an Entry, the Entrant grants permission for Sponsor and Sponsor's Affiliates to publish, post, display, and otherwise use the Entry in any form, in any manner, and in any media deemed appropriate by Sponsor or the Sponsor Affiliate, without compensation of any kind to Entrant.
Emphasis added.

Makes you want to run away from the contest as fast as possible.

Thanks to David Rogers for submitting this alert.

Photographer Fined For Taking Photograph of Woman In Public in Scotland

The BBC reports that a photographer was fined in Scotland for taking a photograph of a woman who "felt unwell and went outside [a bar] for air." The photographer photographed her there. The woman got upset and her friends called the police. The photographer was arrested, charged with breach of the peace, and fined 100 pounds. [Note: According to the BBC, "Breach of the Peace" is "a flexible charge, leading to criticism that it is a catch-all offence for police when none other is available."] The Sheriff said the matter "could be best described as exceptionally unchivalrous" and that "the lady concerned was entitled to her privacy and not to have a passing stranger take a photograph."

This event shows how the "expectation of privacy" can differ by country. Compare the case reported in my September 18, 2008, blog for a completely different outcome when photographing someone even on private property in the U.S.

Generally, it is not an invasion of privacy in the U.S. to take a person's photograph in a public place. However, even when people are in a public place in the U.S., they may still have an expectation of privacy, such as when a woman was photographed when her dress had blown up in a "fun house" at a country fair (Daily Times Democrat v. Graham, 162 So. 2d 474 (Supreme Court of Alabama, 1964)).

The lesson here is that it's always best to learn the customs and laws of countries where you photograph.

Thanks to Colin McDonald for submitting this topic.

Oct 2, 2008

Who Is Behind the Curtain Supporting Orphan Works???

Answer: Google and Microsoft.

Oct 1, 2008

Don't Quit The Fight Against Orphan Works Legislation

The Illustrators' Partnership, via the SAA, is asking that we continue to let the House of Representatives know to oppose the Orphan Works' bill. So don't let your guard down. It only takes a minute to make a difference.

TAKE ACTION: EMAIL CONGRESS NOW

Ding, Dong, the "OW" Is Dead (for Now)!

Wired.com is reporting that the Orphan Works legislation is dead, at least until after the November elections. Although the Senate passed its version last Friday, the House is too busy with financial issues to take up the measure.

At least there's one good thing about the financial crisis.

Thanks to Neal Jacob for submitting this update.