Photo Attorney

Nov 30, 2008

When NOT To Take A Photo - Violating Someone's Expectation of Privacy

Generally, photographers may take photos of others when in public. But sometimes, even when the person is in a public area, you violate the person's privacy when taking his photo because the person has a "reasonable expectation of privacy." See my September 18, 2008, blog for more information.

Salon.com has a good article on the issues related to taking lewd photos of others in public, particularly women, when they may have an expectation of privacy. Commonly called "upskirting" or "downblousing," legal entities have had difficulty prosecuting such activities.

Now, however, many states and congress have passed laws making it a crime to take non-consensual photographic or video recordings of persons in a state of undress or nudity in locations where the individual has a reasonable expectation of privacy. The National Center for Victims of Crime has a list of such laws.

So while you can still look, you can't touch (the shutter button).

Nov 26, 2008

Q&A - May I Register Published Photos Using eCO?

Q. May I register and submit by uploading digital copies of my published photos?

A. A collection of works/photos may be registered using eCO with a single application if either of the following requirements is met:

-- The collection is made up of unpublished works by the same author/photographer and owned by the same copyright claimant; or

-- The collection is made up of multiple published works contained in the same unit of publication and owned by the same claimant.

The following classes of works may be registered in eCO with electronic deposit copies:

-Unpublished works;
-Works published only electronically;
-Published works for which the deposit requirement is ID material (see the Special Deposit Requirements section of Circular 1 for more on ID material - the only special deposit requirement for photographers is many works of the visual arts such as greeting cards, toys, fabrics, and oversized materials (request Circular 40a, Deposit Requirements for Registration of Claims to Copyright in Visual Arts Material, which is currently unavailable online);
-Published works for which there are special agreements requiring the hard copy deposits to be sent separately to the Library of Congress.

If you are unsure of the deposit requirement for your work, write or call the Copyright Office and describe the work you wish to register.

If you register works that require hard copy deposits to satisfy Library of Congress deposit regulations, then you may submit an application and payment in eCO and then create and print a shipping slip to be attached to the hard copy(ies) of your work for delivery to the Copyright Office via mail/courier.

For additional info, check my tutorial on how to register photographs using eCO or contact the Copyright Office.

Nov 24, 2008

Travel Photography: Documenting the World's People & Places

One of my favorite photographers, Bob Krist, has a new book - Travel Photography: Documenting the World's People & Places. Bob's great book has all of the tips, information, and "how-to" needed by any globe-trotting photographer (including Bob's interview with me about when model/property releases are needed), along with a stunning collection of travel photography. This book is a must-add to any travel photographer's library.

Nov 23, 2008

Photography Not Allowed - 18

The Reporters Committee for Freedom of the Press is reporting that a journalist, who was arrested at the scene of a fatal motorcycle wreck, claims that a police officer erased photos of the accident from her camera.

Nov 22, 2008

Photography Not Allowed - 17

As reported by The Daily Orange, Syracuse University's Office of Athletic Compliance sent The Daily Orange a cease and desist letter after the news service published a photo of two members of the SU football team for a news story about their new business, a smoking lounge. The Athletic Compliance Office considers the photo to be an violation of the NCAA rule that prohibits athletes from using their names or likenesses to promote a business.

This is an example of the blurring line between editorial and commercial.

Thanks to Jamie De Pould for submitting this topic.

Nov 20, 2008

How To Register Your Copyrights Using eCO

Readers of my blog know the importance of registering their photographs. The old way included paper forms and putting copies of your photos on media. But to make the process even easier, the US Copyright Office recently started offering the opportunity to register your copyrights online and upload your photos from there.

Using the electronic copyright office system ("eCO"), you can register your photographs quickly and with less work. Currently, you will get your registration certificates back from the office in weeks rather than months using the old-fashioned method.

To help you navigate through the new system, you can follow my article that includes step-by-step instructions and screen shots of my actual registration of some of my photographs. Registering your copyrights is one of the best ways to protect your work.

Nov 18, 2008

Photography Not Allowed - 15+

Discarted checked back with Mike Anzaldi, the photojournalist who was arrested for photographing a crime scene from a location where the police told him he could stand (see my November 9, 2008, blog for background info). Unfortunately, Mr. Anzaldi has been arrested again for covering another reported crime. Discarted gives the details.

How to Infringe on Copyrights and Violate Rights of Publicity

An author of an entry on the Advertising Age website suggests using photos from social websites such as Facebook and tagging other unrelated photos with friends' names for promotion and marketing purposes. Bad idea!

Thanks to Greg Ferguson for submitting this topic.

Nov 17, 2008

WSJ Editorial Analyzes Trends in Copyright

Check the Wall Street Journal's editorial on how technology is affecting copyrights. Pay particular attention to paragraph four of the article discussing the Google book settlement:

The settlement agrees that 20% of a book can be previewed without payment. So while fair use is still undefined for other situations, this is an important precedent that benefits both consumers and content owners.

So how do you use 20% of a photograph?

Thanks to Walter Rowe for submitting this topic.

Property Releases Revisited

Readers of my blog know that no court or state has established a law - either by statute or by case law - creating a right to protect property from being photographed from a public area or from that photograph being used editorially or commercially. Thus, there is no legal reason for "property releases" except perhaps when photographing other copyrighted works or trademarks.

Rich Stim, an attorney, the author of several books on intellectual property, and owner of the blog, "Dear Rich: Nolo's Patent, Copyright & Trademark Blog" addressed this issue in his November 16, 2008, blog. He replies to a person who is upset that a photo of the person's houseboat was published in a book.

On the same issue, stay tuned for an update on the Benjamin Ham case.

Nov 14, 2008

Alert: National Geographic Takes RF License of Your Photo

National Geographic is sponsoring a "Visions-of-Paradise" photography contest. What can you win? Well, twenty photographers will receive one Visions of Paradise book with their winning image as the cover - a value of $35.

What does NG get? A free license for each photo entered to use it in any way NG wants. The rules state:

By entering the Contest, all entrants grant to Authorized Parties (National Geographic Society and its licensees) a royalty-free, worldwide, irrevocable perpetual, nonexclusive license to reproduce, distribute, display, and create derivative works of the entries (along with a name credit) in whole or in part, without further review or participation from the entrant, in any medium now existing or subsequently developed, in editorial, commercial, promotional and trade uses in connection with NGS Products. . . . Entrants consent to the Sponsor doing or omitting to do any act that would otherwise infringe the entrant's "moral rights" in their entries.
Emphasis added.

In sum, when you enter this contest, just make sure that your vision of paradise is the same as NG's.

Thanks to Raeford Dwyer for submitting this alert.

Nov 11, 2008

Book Publishers Adopt PLUS Image Licensing Standards

Three major publishers have called for the adoption of the PLUS (Picture Licensing Universal System) standards by picture archives, photographers and all other image suppliers. Representatives of McGraw Hill, Houghton Mifflin Harcourt, and Pearson each announced that they will adopt the PLUS Picture Licensing Glossary definitions in their contracts, and that they encourage image suppliers to begin embedding PLUS license metadata in all images within one year. The publishers voiced their support at the "PLUS Takes Root in the Publishing Industry" event hosted by the Picture Archive Council of America, during their International Conference in New York City.

The PLUS standards were developed by the PLUS Coalition, an international non-profit organization dedicated to simplifying and facilitating the communication and management of image rights. In the PLUS Coalition, publishers, picture archives, photographers, illustrators, designers, advertising agencies, museums, libraries, artist representatives, educational institutions, manufacturers and their associations collaborate toward that shared goal. The PLUS standards allow rights and attribution information to travel within image files in a machine-readable format that provides instant access and universal understanding.

"We are very pleased that these major publishers - the largest image licensees in the industry - are aligned in their support of the PLUS standards," said Maria Kessler, President of the Picture Archive Association of America.

Bonnie Beacher, Senior Director of Contracts, Copyrights and Permissions at McGraw-Hill Education, said "The PLUS standards benefit publishers and their suppliers by simplifying and clarifying the process of licensing and managing images. We are in the process of implementing PLUS standards, and we would find it very useful for our image suppliers to adopt PLUS standards as well."

Jeff Sedlik, President & CEO of the PLUS Coalition, said "The PLUS standards will allow publishers to leverage embedded license metadata to increase automation and more efficiently manage images in their digital asset management systems."

The PLUS Coalition includes participants in thirty countries, and receives significant support from Leadership Circle members Adobe, Adbase, Adobe, Pentagram, Jupiterimages, Digimarc, Belay Development, Getty Images, IDEAlliance, ImageSpan, Photo District News, IPTC, NAPP, PACA, StockPhotoFinder, Swan Turton, WongDoody and Capture. To learn more about PLUS, visit www.useplus.org or contact info(at)useplus.org.

Nov 10, 2008

Photography Not Allowed - 16

Jane Tyska, an Oakland Tribune photojournalist, was detained last Friday while covering a student protest against immigration raids. She was able to turn on her video camera during the confrontation with the police. Read more about the account at www.insidebayarea.com and see her video where the office accuses Tyska of several crimes, including hiting his car with her elbow!?! Fortunately, she has been released.

Nov 9, 2008

"Are Your Assistants Your Employees?"

Check Andrew Berger's great article on page 28 in the Fall 2008 ASMP Bulletin. Mr. Berger discusses the important issue of whether your assistants are your employees. If so, you must pay unemployment taxes for them.

Also review Mr. Berger's other helpful articles on his bio page.

Nov 6, 2008

Photography Not Allowed - 15

CBS2Chicago.com reports on a freelance photojournalist, Mike Anzaldi, who was arrested on "charges of resisting and obstructing a peace officer." According to Discarted, Anzaldi "frequently covers breaking news in Chicago, and when he heard about an officer-involved fatal shooting on the radio, he arrived at the scene and was shooting images and video on the property of a neighbor with about 20-25 other bystanders."

Apparently, the police didn't want Anzaldi to photograph the crime scene, despite standing behind the police tape. While Anzaldi was released, police confiscated his video camera and two still cameras. When he got his equipment back, around 500 photos were missing. Thanks to technology, Anzaldi was able to recover them.

Thanks to Jamie De Pould for submitting this topic.

Nov 5, 2008

When Camera Metadata Can Help . . .

prove who took the shot. Check Kevin German's report of why it matters.

Nov 4, 2008

How To Prepare Your Photos For Copyright Registration Using Aperture

Check Ellen Anon's blog on how to prepare your photos for registration with the Copyright Office using Aperture.

Bad Contracts!!!

Unfortunately, bad contracts are too common these days. Fortunately, there are resources to help you learn about those bad contracts - just make sure they are reliable. One good resource comes from ASMP, which now provides reviews and suggested revisions to contracts that affect your rights as a photographer.

Nov 3, 2008

Man Charged With Criminal Libel for Publishing Altered Photo

The Pueblo Chieftain reports that a man has been charged with a felony count for "past[ing] pictures of the face of one person onto the body of other persons [so that they were in "in a compromising position"] and published or disseminated the pictures electronically to others."

That's photo editing that's gone too far.

Alert: Websites Take Broad License of Your Content

Modeltxt.com is a new website designed "to keep everyone within the industry loop." Unfortunately, the Terms of Use means the website "keeps" your photo, too:

6. CONTENT POSTED ON THE SERVICES.
. . . By posting Content [including photos] to any area of the Services, you automatically grant . . . to Model txt an irrevocable, perpetual, non-exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display . . . and otherwise use Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing.
[Emphasis added.]

Southwest Airlines also wants your "snapshots" for its Spirit Magazine and other things, according to its Terms and Conditions:
"You grant Pace Communications and Southwest Airlines (and any successors or replacements) and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display the Submissions throughout the world in any media without payment of any compensation or consideration to you."

This may not be worth being in the loop or in print.

Thanks to Jon Warren for submitting the Modeltxt alert and Ernie Svenson for submitting the Spirit Magazine alert.

Nov 1, 2008

Does a Derivative Work Violate Your Copyright?

Alistair Scott reports on a incident where it looks as though a painter combined two photographs to create her work that won the American Watercolor Society's ("AWS") 2008 prestigious Gold Medal Award. The winning painting has been withdrawn from view and the AWS is investigating the matter.

But what about the rights of the photographers who took the two photos that appear to have been used to create the painting? First, a painter or other creative may license the right from a photographer to create a copy or derivative work. However, if the license is not obtained, has there been a violation of the photographer's exclusive rights? It depends.

Exclusive Rights
United States Copyright Law grants exclusive rights to the photographer of an image for use of that image, including the rights 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, and/or to display the image.

See 17 USC Section 106. When those rights are infringed, the copyright owner is entitled to recover damages suffered as a result of the infringement. See 17 USC Section 504.

Infringement of Copyrighted Photographs
Under U.S. Copyright law, you violate the copyright owner's exclusive rights of copying and/or to create a derivative work by creating a work that is a copy of or "substantially similar" to another's. The courts determine whether the two works are substantially similar by comparing them and evaluating whether copyrightable elements have been used in the second work. A court is much more likely to find an infringement if the subject of the photo has been "set up" by the photographer and contains creative and original elements, compared to a photograph of subjects that already exist, such as in nature or a structure such as the Golden Gate Bridge.

Fair Use
Fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too. Specifically, Section 107 of the Copyright Act states that:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

See 17 USC Section 107.

All four factors (as indicated by the "and" before the last factor) are considered by a court to determine whether a use is fair.

For more information on fair use, review my May 13, 2008, blog entry.

Instructive Cases
All artists are inspired by other artists, including photographers. That is one way how art develops. But when a photograph is so similar to another work that it appears to be the same expression of the idea, it may be difficult to believe that it was an accident. Imitation may be the sincerest form of flattery, but no one is grateful when work is stolen.

However, courts don't always find infringements in those cases despite there appearing to be obvious copying to the outsider's eye. For instance, artist Jeff Koons was found to have infringed the German Shepherd puppies' photograph in Rogers v. Koons when he created a sculpture based on the photo but not when Andrea Blanch sued him when he scanned a portion of Ms. Blanch's photograph and incorporated it into a collage. William Patry discusses both cases here.

In this matter, it appears that the painter strictly copied two photographs into a different medium (similar to the Rogers v. Koon case). Would the fact that the painter combined the two photographs be considered a transformation of the underlying work as in the Blanch v. Koons case? While only a court can decide whether a creative work is an infringement of another or falls under fair use, this use raises some concerns.

How NOT to Use A Photograph

A real "daytime drama" - using the photo of a slain young boy on a soap opera.

Thanks to Ryan McGinnis for submitting this topic.