Photo Attorney

Dec 30, 2008

Photos Not Allowed - 1

A skier, known as "randosteve," who posted photographs of the results of an avalanche at the Jackson Hole Mountain Resort on his website at reportedly was pressured by the Resort to remove them. He and another blogger, Stephen Koch, complied with the Resort's requests. Randosteve explained that he was given access to the avalanche area as a member of the Teton County Search and Rescue ("TCSAR"), so he believed he had an obligation to cooperate. Some of the photos at issue can be seen at

Some employers prevent employees from taking photographs while on the job (and if it is the employee's job to take photos, the copyrights belong to the employers). Others may be bound by contract - either written or oral - to not take photos in exchange for being given access to an area. We don't know whether Randosteve had those obligations or instead complied with the Resort's request so that he could continue to work with TCSAR (such work is to be highly commended).

Otherwise, such newsworthy events generally are not protected from publication by privacy rights. Hopefully, the Resort will allow such photos to be shared so that skiers will understand the importance of safety precautions.

Thanks to Clyde Soles for submitting this topic.

Dec 29, 2008

You FORGOT that it was illegal?

The Chicago Tribune reports on the attempts to stop music piracy. One student stated that downloading music illegal is so common that "I kind of forgot that it was illegal." What???

Get even more discouraged by talking to a few people under 30 about downloading photography - they probably have never realized that it's illegal. But when asked whether they would steal a pack of gum from a store, they reply, "of course not!"

What can you do? Make your New Year's resolutions to:

(1) Protect your photos through registration,

(2) educate through users/viewers copyright notices (check out Andrew Zuckerman's notice), and

(3) prosecute infringements - even if it's only a DMCA take-down notice or a cease and desist letter.

Here's hoping for a better 2009!

Dec 25, 2008

Happy Holidays!

Dec 24, 2008

Greenberg's Valiant Battle Comes to An End

As a follow up to my October 20 blog, the US Supreme Court denied Jerry Greenburg's Petition for Writ of Certiorari, asking the Court to review the application of the Tasini case to his, resulting in a ruling against him. This denial of "cert" does not mean that the Supreme Court agrees with the 11th Circuit's order, but only that the Court did not find the reasons to review the matter "compelling."

The issue arose when several photographers, including Greenberg, licensed photos to National Geographic ("NG") magazine to be published in the print editions. NG subsequently sold CDs with copies of the previously-published magazine issues that were almost exactly as they appeared in print, except that NG added a search engine and index. The photographers argued it was a new use of their images and wanted to be paid for it. NG argued that the CDs were a revision of the collective work (the magazines) so that the usage was included in the initial grant of license from the photographers.

After a long battle, the courts ultimately sided with NG. Therefore, photographers now must be clear in their licenses whether a publisher may make electronic uses of their photographs.

While the outcome of this matter is not what we hoped for, Greenberg is to be commended for fighting for photographers' rights.

Dec 21, 2008

Photography Not Allowed - 20

The Evening News of Edinburgh reports on a photographer who was stopped from photographing at the "Winter Wonderland," reportedly because he was using a "long lens" (no mention of tripod concerns).

The purported reason? "Public Safety." What? They're afraid that a photographer will hit someone over the head with her long lens? A security expert explains how all of the fears about photographers are nonsense.

Thanks to Colin McDonald for submitting this topic.

Dec 19, 2008

Photography Not Allowed - 18+ and 19

As an update to the "Photography Not Allowed - 18," Tony Kinard reports that he "witness[ed] a photographer get shut down on Ocean Drive [in Miami] before he barely got his equipment out of his vehicle." Fortunately, Tony has done a few commercial shoots there without incidence. He also provided the link to Miami Beach's Film and Print permit information. Note that the permits are required only:
"for individuals or businesses wishing to conduct commercial film, television, video, photography and all other media use projects taking place on public property, at residential locations, when city services are required or when productions may have an impact on traffic/residents/city services."

Most photographers don't fall under that description, although whether you "may have an impact" is subject to interpretation. Further, the rules about photographing in residential Miami Beach state and the Film and Print Guidelines are much more restrictive, stating that "Individuals or businesses wishing to conduct commercial film, television, video and photography projects must obtain a Film & print permit from the City of Miami Beach."

A representative of the City of Miami Beach - Film and Print Division who answered the phone defined "commercial" as "photography taken for the purpose of making money." She stated that if you look like a professional photographer, the police likely will ask you whether you have a permit.

Clearly, if your photography activities disrupt city operations, then a permit requirement seems appropriate. But if your photography activites do no more harm than those of the common snapshooter, then the permit obligation seems unjustified.

As reported by the Hartford Courant, a photographer and his assistant were arrested and charged with criminal liability to commit obscenity and criminal liability to commit public indecency after taking photos

Q&A - Copying Pricing Structures

Q. I'm starting a new photography business. May I use another photographer's pricing structure to set my own?

A. It's difficult, even for the experienced photographer, to know what prices to charge for your services. Fortunately, there are many resources to help, including these:

- fotoQuote Pro is an industry standard pricing resource.

- Stock Photo Price Calculator is a free resource provided by

- John Harrington provides great information about pricing photo services in his book, "Best Business Practices for Photographers," and on his blog.

- Heron's and MacTavish's book, "Pricing Photography."

Whether you can "copy" another photographer's pricing structure is subject to an analysis similar to whether you can copy contract language. While each situation is different and must be examined on its own, it's difficult to imagine a situation a pricing structure that would be subject to copyright protection since there are few ways to express one and it probably would be deemed an idea, procedure, process, or system.

Nevertheless, you must avoid any antitrust or price fixing activities. For more information, read my blog post on "Antitrust Activity and Price Fixing by Photographers."

Dec 17, 2008

Photography Not Allowed - 18

Walter Luttenberger, a photographer from Austria, reports on the Travel Photographers Network that he was told during his visit to Miami to not make pictures from a bridge. Usually, photographers are told to not take photos of a bridge. But both activities are legal!

Thanks to Joe Becker for submitting this topic.

Forest Service Revises Rules Related to Commercial Photography On Ski Slopes

As reported by the Aspen Times, commercial shoots on public lands in a ski area now require a permit from the Forest Service. The increased requirement arose reportedly because of an accident that killed a member of a filming crew.

Jim Stark, a winter sports administrator with the Aspen-Sopris Ranger District of the Forest Service, admits that the new permit requirement wouldn't have affected that horrible incident. Stark also denies that the permits are an attempt to raise money, noting that the fee for still photography is $110 when it involves 10 or fewer people and $150 when it involves 11 to 30 people. The fee for filming is $150 per day with one to 10 people.

It appears that the Forest Service doesn't understand how that "modest" amount can affect most photographers, struggling to make a living these days. Further, the revised fee structure doesn't appear to be related to safety because no permit is required for "skiers or riders simply taking pictures [or] footage for their personal use."

Granted, if the photography activities obstruct the normal operations of the ski resort, then the photographer should be charged for efforts to keep the activity safe. But if the Forest Service can't tell the difference between a photographer taking photographs to be licensed for commercial purposes from the photographer taking vacation snapshots, then the Forest Service shouldn't require a permit from the former one or should require one for both. Moreover, what benefits will the Forest Service provide in exchange for the additional fee? In sum, this appears to be another invalid and unjustified restriction on photography.

French Photographer Awarded $1 Million+ for Infringements reports that a French court has ordered the Advertising Educational Foundation and Getty Images to pay Alain Ernoult more than $1 million dollars for a variety of charges, including marketing some of Ernoult's images without his permission.

Dec 13, 2008

Alert: Pop Photo Takes Exclusive License of Your Photo

Popular Photographer is sponsoring a photo contest entitled, "Maui: How Bad Do You Want It?" where the winner gets a wonderful trip to Hawaii. Unfortunately, just by entering, you grant the Sponsors and others the exclusive right to use your photo, as provided by the rules of the contest:

6. By entering this contest, you agree to abide by the rules of this contest and to accept the judges' decision as final. You further agree that your entry is your own original work. Submission of an entry and/or acceptance of a prize grants Sponsor, and third parties authorized by Sponsor, the exclusive, perpetual right to publish, use, edit, adapt, modify, excerpt and/or copy the entry for any and all purposes in any and all media currently in existence or hereafter developed without further compensation to you, which includes, but is not limited to, the right to publish the entry in Popular Photography magazine and on and to use your entry as we see fit in exhibitions and promotions of Popular Photography magazine, as well as unlimited use by the Maui Visitors Bureau.

Note that the "exclusive" license means that even you can't use your photo. Seems that the contest is aptly named.

Thanks to Kenneth Salstrom for submitting this alert.

Dec 5, 2008

Safety First! New Law for Photographers on Federal Highways

The National Press Photographers Association reports on the new federal law that requires safety vests for those working on federal highways, including photographers.

Dec 3, 2008

Sketching Not Allowed

The RCFP reports that an artist was told he could not sketch in a courtroom.

Dec 2, 2008

Update: National Geographic Modifies Terms of Photo Contest

As reported in my Nov. 14 blog, National Geographic is sponsoring a "Visions-of-Paradise" photography contest that takes a free license of each photo entered to use it in any way NG wants.

ASMP contacted National Geographic about the contest terms and reports that it received this response:

Upon receiving your email, National Geographic Society evaluated your input and determined that a less expansive license was more appropriate to this particular competition. Accordingly, we have revised the rules to call for a less expansive license, limited to use in connection with the contest and future promotions of the contest.

The revised rules now state:

By entering the Contest, all entrants grant to NGS and its licensees (the "Authorized Parties"), an irrevocable, perpetual non-exclusive license to reproduce, distribute, display and create derivative works of the entries (along with a name credit) in whole or in part, in connection with the Contest and promotion of the Contest, in any media now or hereafter known, including, but not limited to: Display at potential exhibitions; publication of books featuring select entries in the Contest; publication in National Geographic Magazine or online highlighting entries or winners of the Contest. 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.)

That's better (but not the best).

Thanks to Joel Jameson for submitting this update.