Photo Attorney

Feb 28, 2009

Flickr Group Uses Photos for Project = Fair Use?

As previously discussed in my article on fair use and in my blog entry regarding Fairey's use of the Garcia photo for his Obama poster, fair use is sometimes difficult to identify. Many factors are considered for the ultimate determination of fair use. While one of those factors is related to issues such as whether the user is making money from the use, the use is for commercial purposes, or the use is by a non-profit educational institution, those criteria alone do not automatically make a use qualify as "fair."

Take for example, the Flickr Group that is a "CD Cover Meme." There, the members are asked to make a CD Cover using several random items, such as an article title, quotations, and a photo from Flickr. The exercise appears to be only a creative challenge and that nothing further is done with the result except to share it on Flickr.

But does such use of the Flickr photos there qualify as fair use or are the covers an infringing derivative work? Again, only a court can tell us for sure and it seems that the Flickr group is not concerned. Further, if the CD Cover project also included a complete copy of a recorded song, would the analysis change? How would the creator of a CD cover respond to a music group's use of the creator's cover without permission?

It seems that if the Meme's rules were revised to use only a Flickr photo with an appropriate Creative Commons license (you can search specifically for them from the CC website), the Flickr group members could satisfy their creative desires while not potentially stepping on the rights of other creatives.

Thanks to Jim Goldstein for submitting this topic.

Feb 25, 2009

Marketing Through Infringed Photos With Watermarks

As a follow up to my July 3, 2007, blog, Jim Goldstein has a great blog entry providing additional reasons to add a watermark to your photos.

Fotokids Provides Chance to Break Cycle of Poverty

Joseph J. Delconzo (his photo is shown here with permission) is a professional news photographer who has documented the conditions of Guatemala. On his recent trip there, he met former Reuters shooter, Nancy McGirr, the photographer for the book, Out of the Dump, who is now the Executive Director of Fotokids, a non-profit organization based in Guatemala City that McGirr started in 1991.

Several students in the program are becoming successful photographers but need equipment - those things that we take for granted, like film cards and USB storage devices. If you would like to help with the program, a list of items needed is included below and donations are tax deductible (check the San Carlos Foundation/Fotokid's 501(c)(3) status on the IRS website).


If you have photography items to donate, send them to the Foundation (since Guatemala has a mail problem) at:


N McGirr C/O M.J. McConahay

Chatanooga #26

San Francisco, CA 94114

(phone for courier weigh bill only) 415-285-2786


Needs List:

  • power cords for the iBookG4 (b4 the Intel Chip)
  • USB memory sticks
  • SD cards for digital cameras, both mini SD and regular SD
  • point and shoot digital cameras in good working condition
  • laptops
  • Epson 2200/2400 printer or inks
  • Epson Premium Luster paper 8"x10" & 13"x17"
  • B&W or color film
  • Paper 4"x6" HP
  • Rechargeable batteries

Photo Contest Snaps Up Broad License

Snapfish and Travelocity are sponsoring a photo contest of favorite winter "getaways." The winner gets a trip to sunny Orlando, Florida.

But the Terms and Condition (provided by a link posted underneath the "Judging and Rules" paragraph) of the contest provide that:

[B]y submitting an Entry, the Entrant grants permission for Sponsor and Sponsor's Affiliates to publish, post, display, and otherwise use the Photo 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.

Further, the "'Sponsor's Affiliates' includes all entities associated with the Sponsor (the Hewlett-Packard Company) for purposes of this Contest, such as subsidiaries, affiliated companies, advertising agencies, promotional agencies, and judges."

The Terms and Conditions admit that the total approximate retail value of all of the prizes to be awarded in the contest is $4,600. So HP, and its "affiliated companies, advertising and promotional agencies, and judges (?) get the unlimited use of all submitted photos for less than $5000, compared to one winner getting airfare/hotel for Orlando and 40 runner-ups getting a custom cover photo book or a collage poster.

Seems like a photo contest to "getaway" from!

Feb 21, 2009

Facebook's Terms of Use To Be Revised - 'Til Then, Hold Onto Your Photos

This week, Mark Zuckerberg of Facebook (FB) announced that FB would return to its old Terms of Use (TOU) after the Consumerist noticed a change in the terms. But, as reported here in January, the old TOU aren't good either, especially for photographers who care that their photos might be used for promotional purposes without payment.

Facebook's TOU currently state:

By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to 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 . . . .

Certain licenses are needed from you for Facebook to operate. But that need does not include a license to use your work for advertising and other commercial uses to promote Facebook. Fotoquote suggests that a one-year license for a multi-national company's ad (1/4 screen) is worth about $1,237. Further, as reported in my February 17 blog entry, the FB TOU still state that you're on the hook for model release issues.

Facebook's defense is that "it doesn't own your content." That's right. The TOU do not operate as a copyright transfer - only as an extremely broad license. That's bad enough.

FB says that it is going to revise its TOU again and is requesting input towards that end. But in the meantime, some photographers are wisely removing their photos from FB. As Dean Siracusa, President of Transtock, Inc., reports: I've taken all my own personal images down from my Facebook page and have told my photographers to do the same thing. I advised them to put a link on their Facebook page to their own personal website instead." Good idea!

So Dean is taking advantage of one of the best FB Terms: he is "remov[ing his] User Content from the Site . . . [so that] the license granted above will automatically expire."

Feb 18, 2009

Photography Not Allowed - 25

The New York Times reports on Robert Taylor's arrest for taking photos of the subway, despite the New York law (Section 1050.9 (c)) that specifically allows photography being posted on the New York City Metropolitan Transit Authority website.

Thanks to Ryan McGinnis for submitting this alert.

News Around the World Affects Photographers

PC World reports that Facebook reportedly is going back to its old Terms of Use, which, as reported in my January 11, 2009, blog, is going from worse to bad.

The European Court of Human Rights found that a photographer breached a child's privacy by taking a photograph of it while in the hospital. In the U.S., a photographer must be concerned about HIPAA when taking a photograph in a hospital (see my Sept., 15, 2007 blog entry for more info.

The Technology & Marketing Law Blog reports that the court dismissed a lawsuit filed by a couple after Google's camera car drove up their private driveway and posted the pictures taken there on Google's Street View. The court held that the plaintiffs did not allege facts supporting that the intrusion was substantial and highly offensive.

Thanks to Becky Olstad, Howard Wassinger, John Williams, Jason Watson, and Lida Verner for submitting these topics.

Feb 17, 2009

Q&A - Can Facebook Use My Photos of People?

Q. If I upload some images of people to FaceBook, can Facebook use those images in one of their advertisements? Can I be held liable for how Facebook uses my photograph?

A. Generally, the publisher of a photograph, rather than the photographer, is responsible for getting permission of the person in a photo to use the person's name or likeness for a commercial purpose. This was the issue in the Virgin Mobile case reported in my July 15, 2007 blog.

However, as discussed in yesterday's blog, Facebook's Terms of Use state:
You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy . . . any User Content you (i) Post on or in connection with the Facebook Service . . . and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof. You represent and warrant that you have all rights and permissions to grant the foregoing licenses.

Plus, under the TOU, you agree to indemnify Facebook (see my July 21, 2006 blog for an explanation of these contract terms):
You agree to indemnify and hold Facebook Entities harmless from and against any claim or cause of action brought by a third party as well as any related damages, costs and expenses (including reasonable attorneys' fees) ("Claim") arising out of or related to your (a) use of the Facebook Service or any of the applications, features, content or materials related thereto; (b) violation of these Terms; (c) violation of the rights of any other person or entity; or (d) breach of the representations, warranties and covenants made by you herein. Facebook reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Facebook, and you agree to cooperate with Facebook's defense of these Claims.

Do you really need any more reason to not post photos on Facebook?

Thanks to David Redding for submitting this topic.

Feb 16, 2009

Facebook's Terms of Use Go From Bad to Worse

As reported in my January 11, 2009, blog, Facebook's Terms of Use are bad. But, as reported by the Consumerist blog, Facebook has now removed the clause that provided that the license expired when you remove your Content from the site. Now, the TOU state:

The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content . . . Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration . . . .

The License also has been revised. It now states:
You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof. You represent and warrant that you have all rights and permissions to grant the foregoing licenses.

So, as one person questioned: "Will this really hold up in a court of law, if, let's say Facebook decides to use a work registered with the U.S. Copyright Office for commercial purposes?"

Yep! Registered or not. Time to make an about face from Facebook.

Thanks to Rob Sylvan and Tom Winstead for submitting this alert.

Feb 14, 2009

Colbert and Experts on The Shepard Fairey Copyright Issue

Check it out! Be sure to watch to the end.

Feb 12, 2009

Minneapolis Blogger Investigates Local Infringements

Ed Kohler is a blogger in Minneapolis who has investigated and reported on some purported infringements by a local media outlet.

Infringements are rampant. Check my May 16, 2006 and March 22, 2005 blog entries on how to protect your photographs.

Amtrak At It Again - Fighting the Wrong Enemy

Discarted blog reports that Amtrak employees forced an LA photographer to delete his images. The photographer reports that, "Not knowing how the law applied inside Union Station, [he] complied with the demands to delete the images." But if he had read Bert Krages' "The Photographer's Right" flyer, he would have known he didn't have to delete his photos (but at least he got them back via recovery software).

Thanks to Matt Ward for submitting this alert.

Feb 11, 2009

Photo Attorney Blog Celebrates Four Big Years!


The Photo Attorney blog started
four years ago today!

Thanks for your support!

Stay tuned to the Photo Attorney blog to learn more about protecting your work!

Feb 10, 2009

More Info on the Fairey Matter from PDN

PDN Pulse has more good info on the Shepard Fairey v. AP suit, with a link to Fairey's Complaint, and comment from the AP.

Feb 9, 2009

Fairey Sues Associated Press For Copyright Claim

As reported by the NY Times Art Beat, Shepard Fairey is not waiting to see whether the Associated Press will sue him for copyright infringement. Instead, Fairey has filed suit against the AP asking the court for a declaratory judgment that Fairey's use of the AP photo was a fair use.

Photo of Woman in Central Park Gets Photographer Arrested Then Trip to Paris

The NY Daily News reports that Robert Kabakoff was charged with "unlawful surveillance" for taking a photo of a woman sunning herself in Central Park. Kabakoff claims he was about 15 feet from the woman when he took the photo.

A person is guilty of Section 250.45, Unlawful surveillance in the second degree when:

1. For his or her own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

2. For his or her own, or another person's sexual arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person`s knowledge or consent; or

3. (a) For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person's knowledge or consent.

(b) For the purposes of this subdivision, when a person uses or installs, or permits the utilization or installation of an imaging device in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a hotel, motel or inn, there is a rebuttable presumption that such person did so for no legitimate purpose; or

4. Without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person.

Under the facts of this case, Kabakoff could only potentially be liable for paragraphs 1 or 2. But the Penal Code states that: "Place and time when a person has a reasonable expectation of privacy" means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy." In this case, the woman photographed certainly had no reasonable expectation of privacy in Central Park.

Kabakoff sued and used the settlement money to go to Paris. C'est la vie!

Feb 8, 2009

Mass Photo Session Scheduled in UK To Campaign Against New Law

The National Union of Journalists is organizing a mass picture taking session outside of London's police headquarters on Monday, February 16 to draw attention to the new legislation that will make it "illegal to take a photograph of a police officer that is "likely to be useful to a person committing or preparing an act of terrorism."

Fairey Has Other Issues

The SF Gate reports that Shepard Fairey was arrested on Saturday for outstanding warrants on tagging property with graffiti. The Art Law blog says that's 15 or 16 times for him.

Feb 5, 2009

AP Claims Fairey's Use of the Obama Photo Is An Infringement

As an update to my January 22 blog, the ajc.com reports that the AP has made a claim against Fairey for infringement of its photograph. Fairey's attorney claims that the use is permitted through "fair use." Who is right? Unfortunately, only a court can truly tell us. But that doesn't stop us from trying to figure it out!

For general information, my article on fair use is helpful. The summaries on fair use cases provided by the Copyright Management Center and Stanford University give a sense of how the courts have handled fair use issues for those particular circumstances. But therein lies the problem - because fair use is analyzed by a group of factors and those factors are applied to those situations, it's difficult to figure out what a court would do in a different matter.

Are Photographs Protected By Copyright?
Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 USC 102. Generally, the creative elements to a photograph include the angle, the lighting, the selection of depth of field, the exposure, the color balance, the crop, etc.

Some legal scholars think, however, that many photographs are not entitled to copyright protection (this is often referred to as a "thin copyright") where there is not much original copyrightable expression in a particular work. For the Garcia photo, some have argued that Garcia did not select the pose, the lighting, or Obama's expression, etc. However, Garcia did select the framing, the angle, and the depth of field for his photo (but the issue for fair use is whether Fairey copied Garcia's expression). Fortunately, the idea that photographs are not copyrightable is generally not held by the law or courts.

Therefore, assuming that Garcia's photograph is entitled to copyright protection, then Garcia (or the Associated Press) as the copyright owner, would own the exclusive rights to that photograph. (There is some question as to who is the copyright owner of the Obama photograph. See John Harrington's blog entry for more information).

The Rights of the Copyright Owner
Copyrights give the owner the exclusive right to do, or to authorize others to do, specific things with the photographs. Copyright law effectively gives the copyright owner a legal monopoly on the use of that image. It also gives the copyright owner the right to prevent someone else from destroying their work.

When you own a copyright, you have the sole right (also known as the "exclusive rights") to:

- reproduce the copyrighted work;
- display the copyrighted work publicly;
- 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.

17 USC Section 106.

A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other types of modifications. The work must be different enough from the original to be regarded as a new work - in other words, it must contain some substantial, not merely trivial, originality. The threshold for originality in a derivative work is higher than that required for the original work.

So, while Fairey apparently traced Obama's face from the photograph, he arguably added substantial elements of originality with the colors and cropping of the photo. Note that if it is determined that the elements added to the photo are not considered to be substantial, then Fairey will be deemed to have reproduced the photo without permission.

Fair Use Analysis
Fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. 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.

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.

The "purpose and character of the use" is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a "transformative use") instead of simply copied and/or placed into another work. It's not just whether the new work is different than the original but whether the new work has a different purpose (such as a book review rather than another book). Here, Fairey's artwork was used as a campaign logo, but the photo likewise could have been used. This weighs against a finding of fair use.

A court is more likely to find fair use when the "nature" of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works. In this case, Garcia's photo was published. Thus, this leans towards a finding of fair use.

An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used. While such a "de minimis" use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example. Since the majority of the Garcia photo was used, the Fairey poster would be less likely to be considered a fair use.

When the unauthorized use directly effects and competes with the copyright owner's business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer - such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field. Again, since Garcia could have and was in the business of licensing photos, then a court would probably find this factor to weigh against fair use.

You Be the Judge
The Copyright Management Center has a checklist to help you consider the fair use factors, similar to the analysis that a court would undertake in a case. Here's my analysis of the Garcia v. Fairey case.
Many more checks appear in the "opposing fair use" column. Therefore, would I take this case as an infringement? Yep, in a heartbeat.

But as the Stanford Fair Use website explains:

[B]e aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varying court decisions. That's because the judges and lawmakers who created the fair use exception did not want to limit the definition of fair use. They wanted it--like free speech--to have an expansive meaning that could be open to interpretation.

How a court would interpret this use remains to be seen.

Thanks to Brian Garrett for submitting this topic.

Feb 4, 2009

UK Copyright Code in Verse

Yehuda Berlinger is back at it again. This time, he's put the UK Copyright Code in verse.

Feb 3, 2009

Colbert Nation Video Shows the True "Threat" of Photography

As a follow up to my January 2, 2009, blog entry, check the video from Stephen Colbert. Go Duane!

Thanks to Alicia Calzada for submitting this topic.

Feb 2, 2009

Photography Not Allowed - 24 (U.K.)

According to the British Journal of Photography, it soon will be illegal to take a photograph of a police officer that is "likely to be useful to a person committing or preparing an act of terrorism."

Thanks to Matt Ward for submitting this alert found on the War on Photography blog.

Feb 1, 2009

Q&A - Where Do I Put My Copyright Notice?

Q. Where do I place my copyright notice on a website? Should it be on a splash page at the front, on the photo, or on the bottom of each page?

A. According to Section 401 of the Copyright Act:
A notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. . . . The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright.

The Register of Copyrights may prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications are not be considered exhaustive. For example, when your photograph is included in a collective work (such as a book or magazine), your photograph may bear its own notice of copyright. However, a single notice applicable to the collective work as a whole is sufficient.

Therefore, there are many reasons to use a copyright notice. First, if a copyright notice appears on the published copy to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages. As stated in Lowry's Reports, Inc. v. Legg Mason Inc., et al., 271 F.Supp.2d 737 (D. Md., July 10, 2003):

"[W]illfulness" means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights. Brown v. McCormick, 87 F.Supp.2d 467, 482 (D.Md.2000). Evidence that the infringed works bore prominent copyright notices supports . . . a finding of willfulness. Castle Rock Entm't v. Carol Publ'g Group, Inc., 955 F.Supp. 260, 267 (S.D.N.Y.1997).

Second, removal of the copyright management information violates Section 1202 of the Copyright Act (also known as part of the Digital Millineum Copyright Act). Your copyright management information "means any of the following information conveyed in connection with copies of a work or displays of a work,including in digital form (such as in the metadata of your photo file):

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

Read more about this DMCA violation in my earlier blog entry.

In sum, the more notice you give to an infringer, the stronger your argument that the infringer may not use the "innocent infringement" defense and the more likely you will be able to recover for willful infringement and damages under the DMCA. If appropriate, put your copyright notice on or adjacent to each photo (compare the disadvantages of heavily watermarked images in my July 23, 2008 blog entry), in the metadata of the photo, on each webpage, and/or on your splash page at the front (if you are sure that no one can get to your photos while bypassing the splash page).