Jan 30, 2009
New Bill Seeks to Make Phone Cameras Make Noise
If passed, the law will require that "any mobile phone containing a digital camera that is manufactured for sale in the United States shall sound a tone or other sound audible within a reasonable radius of the phone whenever a photograph is taken with the camera in such phone." The bill has been referred to the House Committee on Energy and Commerce (because it will be enforced by the Consumer Product Safety Commission).
As discussed in an earlier blog entry, a person's right of privacy is invaded when the person has a "reasonable expectation of privacy," such as in a dressing or restroom. (The concern of the bill about taking photos of children in "public places" doesn't make sense.) And some states have laws to prosecute such action. But such a law as currently written may be deemed "overly broad" if it affects First Amendment rights of those who use camera phones for a variety of good reasons. Let's just hope that such legislation doesn't ever extend to "regular" cameras.
Jan 28, 2009
Copyright Infringement Is Not Limited To Photographs
Jan 25, 2009
Update on the Lawsuit Against Benjamin Ham for Photographing Private Property
The Foundation alleges that Ham passed through locked gates and ignored the "no trespassing signs" to enter its property without permission to take photographs. Dixie Plantation was left to the Foundation pursuant to a gift from a will that included certain restrictions on the property's use for commercial purposes. The Foundation believed that Ham's selling of his copies of the "Plantation Road" photograph violated that restriction and thus sued Ham after he refused to stop.
The Court's Order
The matter now has settled out-of-court at a mediation, but not before the judge issued some rulings that are important to photographers. The Order may be viewed here.
The Foundation's Motion to Remand
First, the Foundation asked the judge to remand the case back to state court from federal court. Only federal courts have "jurisdiction" (authority) to hear cases related to copyright. The issue is much more complex than is addressed here, but some of the court's analysis is instructive. Specifically, the Foundation's claims of conversion, trespass, and violation of the right of privacy (all state court claims) don't appear on their face to be related to copyright. So, generally, the Foundation would be allowed to keep the case in a state court. But Ham argued that the state law claims were "subsumed" by federal law of copyright.
As part of the court's analysis, it looked closely at the Foundation's claim of conversion. The court defined conversion as "the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of the condition or the exclusion of the owner's rights. Conversion may arise by some illegal use or misuse, or by illegal detention of another's personal property." After reviewing the case law on the subject, the court stated:
Federal courts, then, have generally found that when a conversion claim encroaches upon the subject matter covered under federal copyright law, the claim is preempted and should be brought as a copyright claim. A conversion cause of action only passes the extra element test where there was actually physical property converted, or some other circumstance . . . which makes the conversion cause of action fundamentally distinct from the kind of claim that could be brought under the Copyright Act. . . .
[T]he court simply cannot see how the gravamen of the conversion claim is not simply this: that Defendant unlawfully photographed an image belonging to Plaintiff and is now commercially distributing it. Plaintiff has not asserted that Defendant took any tangible object, so the only possible property of Plaintiff's that Defendant is alleged to have converted is the image of "Plantation Road."Disputes over ownership, use, or distribution of photographs and images are properly the realm of federal copyright law.
Accordingly, the court held that plaintiff's state claims are preempted by copyright law so that the parties' dispute was properly before the federal court. Thus, despite the concern of some (see my May 9, 2006, blog entry for more information), this court and other courts have found that taking a photograph of a property does not comprise the legal action of "conversion."
Ham's Motion to Dismiss
The Foundation's Conversion Claim
The court then turned to Ham's motion to dismiss. Because of the above finding, the court dismissed the Foundation's claim of conversion because it is preempted by federal copyright law.
The Foundation's Right of Privacy Claim
Ham also argued that the Foundation's claim of invasion of privacy should be dismissed. The court found that most jurisdictions to have considered the issue, though, have held that corporations may not bring suit for invasion of privacy because the plaintiff is a corporation and not a living individual/human, it has no action for invasion of privacy.
However, the court did not need to rule on the issue of whether South Carolina law allows a corporate plaintiff to recover in tort for invasion of privacy because the Foundation failed to allege the 4th element necessary for invasion of privacy: (1) publicizing, (2) absent any waiver or privilege, (3) private matters in which the public has no legitimate concern, (4) so as to bring shame or humiliation to a person of ordinary sensibilities. The court explained:
The court can see no way in which the publication of a photo capturing a beautiful image like "Plantation Road" in any way "bring[s] shame or humiliation to a person of ordinary sensibilities." This is especially true in light of the fact that Defendant does not even identify Dixie Plantation as the setting of "Plantation Road."
Accordingly, the court dismissed the Foundation's claim for invasion of privacy.
The Foundation's Trespass Claim
Because Ham physically invaded Dixie Plantation without permission to take photographs, the court did not dismiss the trespass claim against Ham. Significantly, the court noted that if Ham had somehow taken the "Plantation Road" photograph from off the property with some sort of high-magnification equipment, the Foundation would have no cause of action for trespass.
The court closely compared this matter to the Fourth Circuit's decision in Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999). The Food Lion case involved news reporters from the ABC program PrimeTime Live who obtained jobs at the grocery store chain at stores in North Carolina and South Carolina under fraudulent pretenses, and then proceeded to surreptitiously film Food Lion's unsavory food handling practices. When the program aired, Food Lion sued the program and its producers, and at trial, obtained a guilty verdict against the defendants on a charge of trespass, among other charges. Food Lion alleged no physical damages, but sought compensation for "loss of good will, lost sales and profits, and diminished stock value."
However, before the damages phase of the trial went before the jury, the trial court instructed the jury that the plaintiff could not recover damages related to these intangible losses on the trespass claim. The court, however, allowed the claim of trespass to go forward and the jury awarded Food Lion nominal damages of $1.00.
The Fourth Circuit upheld the ruling of the trial court and the jury's verdict with regard to the trespass claim. The inquiry mainly centered around the issue of whether Food Lion somehow consented to have the "employees" videotape the store's food handling practices by hiring them and allowing them into the store. The court was untroubled by, and indeed never even raised, the issue of whether Food Lion should be barred from its trespass action because the trespass caused no physical harm.
In a separate fraud claim, the Food Lion jury was limited to awarding Food Lion damages based on actual tangible damages, and awarded the plaintiff a mere $1,400. However, the jury then went on to award the plaintiff over $5.5 million in punitive damages on the same claim.
Based on the Food Lion case, the Ham court found that if it is a trespass for a photographer to take photographs without the owner of private property's consent when the owner has at least consented to have the photographer on the property, the court simply cannot see how it would not also be trespass in a similar situation where the difference is that the owner has not even consented to allow the photographer on the property. Furthermore, the issue of physical versus intangible harm does not represent a per se requirement of a holding of trespass, but rather goes to the issue of harm. While the Foundation had not alleged any physical or tangible harm from Ham's actions, the Foundation may have been awarded punitive damages by a jury. Thus, the court would have allowed the Foundation's claim of trespass to go to the jury.
After the ruling by the court, trespass was the only surviving claim of the Foundation. The parties then mediated the dispute. As with the vast majority of lawsuits, the parties reached a compromise at mediation.
Importantly, the photo, "Plantation Road," is still for sale on the Martin Gallery's website. But, as is usual, the terms of the settlement agreement are confidential.
Of significance, it is reported that despite the Foundation's position that the property could not be used for "commercial purposes," parts of the movie, "The Patriot" were filmed there and other photographs have been taken of the property. Unfortunately, many of the photographers identified during discovery as having taken photos while on the Foundation's property removed their photos after getting "letters of intent" from the Foundation. For example, check the note on this website: "We have a photo of some oak trees at Dixie Plantation, but the College of Charleston Foundation won't allow us to display it." But Ham was willing to fight for photographer's rights (at great expense).
Ham says of his experience, "I am glad the process is over and we were able to reach an agreement that I think was beneficial to both parties. The legal costs were significant and I will have to bear the costs since I had no insurance for such legal issues. I have no regrets in having done so and I hope it will clarify some of these issues."
Ham has done much for photographers. If you'd like to support his efforts, purchase one of his wonderful prints from his website.
Jan 24, 2009
Alert: Photobucket Allows Users to Use Your Photos for Other Purposes
But "share" is a dangerous word. The Photobucket terms provide that:
By displaying or publishing ("posting") any Content on or through the Photobucket Services, you hereby grant to Photobucket and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content marked "private" will not be distributed outside the Photobucket Services. Photobucket and/or other Users may copy, print or display publicly available Content outside of the Photobucket Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content).
Fortunately, the terms also state that: "after you remove your Content from the Photobucket Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license to such Content will terminate. If after we have distributed your Content outside the Photobucket Website you change the Content's privacy setting to "private," we will cease any further distribution of such "private" Content outside the Photobucket Website as soon as practicable."
If you don't want other Photobucket users to be able to put your photo on a t-shirt, make sure that your account is "private" or just don't post at all.
Thanks to Jim Poor for submitting this alert.
Jan 22, 2009
Lawyers Discuss the Fair Use and Copyright Issues of the Obama Campaign Image
Compare the discussion at the Art Law blog and the linked discussions there. Lots of questions, but no answers yet.
Jan 21, 2009
Photography Not Allowed - 23
Jan 18, 2009
Discount on Photographer's Legal Guide!
A limited number of Photographer's Legal Guide softback books that were slightly damaged in shipping (bent corners/marks on the cover - the text of the book is not affected) are available for purchase.
$14 each (includes shipping) - a discount of almost $10! Contact Carolyn to order or send a Paypal payment to carolyn (at) photoattorney (dot) com (your money will be promptly refunded if all books have been sold).
Jan 17, 2009
New York Times Gets A Piece of Your History
The Member Agreement also provides:
[Your Submission] may be edited, removed, modified, published, transmitted, and displayed by The New York Times Company and you waive any rights you may have in having the material altered or changed in a manner not agreeable to you. . . .
You grant NYT a perpetual, nonexclusive, world-wide, royalty free, sub-licensable license to the Submissions . . . .
By making a Submission, you are consenting to its display on the site and for related online and offline promotional uses. . . .
You represent, warrant and covenant (a) that no materials of any kind submitted through your account will (i) violate, plagiarize, or infringe upon the rights of any third party . . . . You hereby indemnify, defend and hold harmless NYT and NYTimes.com, and all officers, directors, owners, agents, information providers, affiliates, licensors and licensees (collectively, the "Indemnified Parties") from and against any and all liability and costs, including, without limitation, reasonable attorneys' fees, incurred by the Indemnified Parties in connection with any claim arising out of any breach by you or any user of your account of this Agreement or the foregoing representations, warranties and covenants. . . .
Seems to be a tough history lesson.
Thanks to Kenneth Johansson and Clyde Soles for submitting this topic.
Jan 16, 2009
Photographer Alleges Michael Moore Infringed Copyright
Jan 14, 2009
Obama's Right of Publicity Issues
Jan 13, 2009
NPPA Asks Amtrak To Stop Harassing Photographers
Jan 12, 2009
Zootoo Takes License of Your Content for All Purposes
Unfortunately, Zootoo also embraces Terms of Service that take:
a worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable right and license to use, re-use, copy, modify, delete in its entirety, adapt, publish, host, store, cache, archive, index, categorize, comment on, broadcast, stream, translate, publicly perform, publicly display, exhibit, create derivative works from and/or sell and/or distribute, re-distribute, publish, transmit and disseminate and/or incorporate or otherwise exploit such Submitted Content in, with, into or through any form, medium or technology (whether now known or hereinafter developed) without compensation to you, without obtaining your permission or providing attribution, and for any and all purposes including, without limitation, news, advertising, promotional, marketing, publicity, trade or commercial purposes.
That's enough to make a dog whimper!
Thanks to George W. Moore for submitting this alert.
The Difference Between a Copyright, Trademark, and Patent
Jan 11, 2009
Facebook Can Use Your Content for Promotional Purposes
By posting User Content to any part of the Site, you automatically grant . . . to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.
Fortunately, the license expires when you remove your Content from the site. But you may want to pause before you post any of your great photos that Facebook can use for promotional purposes.
Thanks to Cris Mitchell and Paulo Rodrigues for submitting this alert.
Jan 10, 2009
Richard Prince Sued for Copyright Infringement
Prince is known as an "appropriation artist." Last year, a controversy arose from Prince's use of photographs from Marlboro advertisements and has a history of using other commerical works. Prince doesn't deny copying the images. But the legal issue is whether such copying is fair use - Prince's art may qualify as "transformative works." [More information is available in my article on fair use.] Since only a court can make that decision, that remains to be seen.
Thanks to Tim Atherton and Matt Ward for submitting this topic.
US Government Owns Federal Prisoner's Creative Work
But works by the U. S. government are not eligible for U. S. copyright protection. See my August 3, 2005 blog and 17 USC 105.
Further, 28 USC 1498(b) provides, in part:
That a Government employee shall have a right
of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, that this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used.
The US Court of Appeals for the Federal Court held that the prisoner was in "service" of the US Government when he created the calendars. Therefore, Walton doesn't own the copyright in the calendars - the government does.
Note that Wired.com states that Walton "copyrighted" the calendars. Such use of the term is inaccurate and does not help photographers. Please use the correct term - "registered" - for filing your copyrighted works with the US Copyright Office. See my June 21, 2006 blog for more information.
Thanks to John Williams for submitting this alert.
Jan 9, 2009
Q&A - What Size File Do I Submit for eCO Registration?
A. The Copyright Office does not require a minimum or maximum size of file; a thumbnail that clearly depicts the photograph, such as 200 pixels in height or width, should be sufficient. Check Bert Krages' Photoshop action or Ellen Anon's Aperture workflow on how to prepare your images for filing.
If you have a large number of files, the Copyright Office recommends that you create one or more ZIP files; if you have a very large file, break it up into two or more smaller files. The system has a 30-minute upload time out that, depending on your connection speed, limits the size/number of files that can be uploaded in one session.
If you mail your deposit to the Copyright Office, package the following items in boxes rather than envelopes for mailing to the Copyright Office:
Electronic media such as audiocassettes, videocassettes, CDs, and DVDs
Slick advertisements, color photocopies, and other print items that are rubber- and vegetable-based
CDs/DVDs packaged in standard full-sized jewel boxes are more likely to survive the mail radiation process than those packaged in slim-line cases.
For more information, check my article on "Registering Your Copyrights Using the eCO System" and the US Copyright Office Website.
Thanks to Lida Verner for submitting this topic.
Photography Not Allowed - 22 (U.K.)
"Police officers may not prevent someone from taking a photograph in public unless they suspect criminal or terrorist intent. Their powers are strictly regulated by law and once an image has been recorded, the police have no power to delete or confiscate it without a court order. This applies equally to members of the media seeking to record images, who do not need a permit to photograph or film in public places."
Thanks to Colin McDonald for submitting this alert.
Jan 8, 2009
"Copyright Does Not Help Artists" - One Viewpoint
However, according to her blog entry, Paley cannot secure the rights to the 11 music compositions that are "essential" to the movie for less than $50,000, which she believes is cost prohibitive to distributing the film. So she's not happy with copyright law or the "extortionists" (as Paley calls the music publishers) and she's getting the support of Question Copyright and Copyfight.
In this interview, Paley says that copyright has never helped her. In this blog entry, she says she is "broke, in debt, and homeless." Fortunately, many supporters are trying to help her raise money to pay the license.
Ms. Paley explains how she got to this point (the 8th response):
I was more concerned about the recordings (which through much research found were in fact PD [public domain]) and hoped (not assumed) that payment could be negotiated for the compositions. . . . Of course I knew from the beginning I could have "found cheaper/freer music" - AND NEVER MADE THE FILM THAT NEEDED TO BE MADE. I could make a pile of shit like most filmmakers, and not have to actually stand up for what's right - but hey, the music would have been cheaper/freer!
But as Ben Sheffner brilliantly clarifies:
The "problem" that Wexelblat and QuestionCopyright.org and Paley seem to think exists is that the publisher is asking too much money for a license. But that could happen whether the compositions are 80 years old or 8. They simply think that a filmmaker in Paley's position has some right to a licence at a price she can afford, rather than at the price the copyright owner wishes to charge. That "right" simply doesn't exist in the law; nor should it, any more than my "right" to the new 6-Series I'd like at the price I can afford, rather than the price BMW chooses to charge.)
It's great that Paley's work is being lauded and hopefully she will raise the funds to distribute her work. But to bash copyright law so that some artists can take other's work without whatever payment they demand is going to make other artists "broke, in debt, and homeless."
Jan 7, 2009
Court Finds Nude Person Has Privacy Rights
Specifically, you violate someone's "right of privacy" when that person has a "reasonable expectation of privacy." For Wisconsin, at least, we now know what that includes.
Jan 6, 2009
Update on Orphan Works
Jan 2, 2009
Court Finds Use of Copyrighted Work in Movie Was "De Minimis"
In the NY case, the court granted Paramount Picture's motion to dismiss, awarded Paramount court costs (but not attorney's fees), and stated in its order that:
The scene in question lasts only three-and-a-half minutes, and the [pinball machine] appears in the scene sporadically, for no more than a few seconds at a time. More importantly, the pinball machine is always in the background; it is never seen in the foreground. It never appears by itself or in a close-up. It is never mentioned and plays no role in the plot. It is almost aways partially obscured (by Gibson and pieces of furniture), and is fully visible for only a few seconds during the entire scene. The Designs (on the backglass and playfield of the pinball machine) are never fully visible and are either out of focus or obscured. Indeed, an average observer would not recognize the Designs as anything other than generic designs in a pinball machine.
This gives us a bit better sense of whether the depiction of a copyrighted work in the background of an image comprises infringement.
Photography Not Allowed - 21
Photo of Duane Kerzic showing wrist injury (shown with permission)
Thanks to Kyle Zeringue for submitting this topic.
Alert: Flickr Group's Photo Rules Cause Concern
Unfortunately, some of the rules for the Photo Challenge seem a bit onerous. Specifically, the Rules state:
Your Photos may NOT include any copyrights embedded or displayed.[Emphasis added.]
I also understand that the Partnership will take every precaution to protect my image(s) if it/they are posted on its Web site, the image can potentially be downloaded by any computer user. Therefore, I agree to indemnify and hold harmless from any claims the following:
All employees of the Puget Sound Partnership
State of Washington
Puget Sound Partnership and Council members and their staff.
It's difficult to imagine why the Partnership won't allow embedded copyright information - there's no transfer of copyright and the photographer should get some promotion/protection of the photograph in exchange for its free use. And why should the photographer agree to indemnify the Partnership for any claims?
Thanks to Joe Becker for submitting this alert.
Q&A - Who Signs the Model Release?
A. Because minors can later disaffirm (void) contracts, you need the minor's parent/guardian's consent to use the minor's name/likeness for commercial purposes.
Significantly, in the case of Shields v. Gross, 461 N.Y.S.2d 254 (1983), Brooke Shields attempted to void the model release her mother signed when Shields was minor. The pertinent sections of the release at issue stated:
I hereby give the photographer, his legal representatives, and assigns, those for whom the photographer is acting, and those acting with his permission, or his employees, the right and permission to copyright and/or use, reuse and/or publish, and republish photographic pictures or portraits of me, or in which I may be distorted in character, or form, in conjunction with my own or a fictitious name, on reproductions thereof in color, or black and white made through any media by the photographer at his studio or elsewhere, for any purpose whatsoever; including the use of any printed matter in conjunction therewith.
I hereby waive any right to inspect or approve the finished photograph or advertising copy or printed matter that may be used in conjunction therewith or to the eventual use that it might be applied.
The New York court held that Shields, now an adult, had no right to disaffirm the consent given by her mother so that the release was still binding as to Shields.
However, once a model reaches the age of majority (usually 18), then the model, not the parent, has the right to sign a model release on his behalf. Therefore, if you don't get the release from the parent/guardian while the model is a minor, then get it from the adult model.
Thanks to Rick Dalton for submitting this topic.