Photo Attorney

May 30, 2009

Rights Grabs Continue - Now Includes Kindle Blogs

The rights grabs continue for these contests and even for publishing your blog through Amazon Kindle:

Costco Photo Contest: "10. Entrant confirms and promises that entry is original and does not infringe the intellectual property rights of any third party. By participating, entrant agrees that ownership of the entry and all intellectual property rights in the entry is assigned to Costco, and will do all things necessary to give effect to that assignment."

Boston.com-Share Your Travel Adventures: "By submitting your photo(s) to Boston.com, you agree that such photo(s) and the accompanying information will become the property of Boston.com and you grant Boston.com permission to publicly display and use the photographs in any form or media for any and all purposes."

Boston.com's Four Elements Photo Contest: "By submitting your photo to Boston.com, you agree that such photo and the accompanying information will become the property of Boston.com and you grant Boston.com, The Boston Globe, Boston Metro and their sublicensees permission to publicly display, reproduce and use the videos in any form or media for any and (all editorial and related promotional purposes) purposes."

Fodor's Show Us Your Maryland Photo Contest: "7. LICENSE AND WARRANTIES: By entering this contest, entrants grant to sponsor and its licensees and assigns, a royalty-free, non-exclusive, worldwide right to copy, crop, edit, publish, display, distribute, sublicense or otherwise use their photographs for the full term of copyright thereof, in connection with the publication or display of sponsor's travel-related content, in all languages and all media, whether now known or hereinafter devised, including without limitation on the Internet, on mobile platforms and/or devices and on the cover or in the interior of sponsor's travel guides, and in the advertising, publicity and promotion thereof. . . . Entrants understand and acknowledge that they will not have any right of approval over the use of the photographs and will not receive any compensation as a result of any use of the photographs by sponsor."

Nature Conservancy Annual Photo Contest Rules: "By entering the contest, you hereby grant to The Nature Conservancy (i) a nonexclusive, worldwide, irrevocable, royalty-free license to reproduce, distribute, publicly display and publicly perform the photographs you submit to The Nature Conservancy . . . ."

Face of Smashbox Contest: "5(B) GRANTS/WAIVERS: By uploading a Submission, you irrevocably grant Sponsor and its affiliates, legal representatives, assigns, agents and licensees, the unconditional, unlimited and perpetual right and permission to reproduce, encode, store, copy, transmit, publish, post, broadcast, display, adapt, exhibit and/or otherwise use, reuse, or not use your Submission or any portion of your Submission. . . in this Promotion in any and all media without limitation, worldwide and throughout perpetuity, without additional compensation, notice to, or approval from you. . . . YOU REPRESENT, UNDERSTAND AND ACKNOWLEDGE THAT YOU WILL NOT BE PAID FOR OR RECEIVE ANY FORM OF COMPENSATION OR ROYALTY IN EXCHANGE FOR GRANTING SPONSOR THESE RIGHTS OR FOR ANY SUBSEQUENT USE OF SUCH SUBMISSION BY SPONSOR (OTHER THAN ANY PRIZE THAT MAY BE AWARDED TO A WINNER. You hereby waive all intellectual property rights, privacy/publicity rights or other legal or moral rights that might limit or preclude Sponsor’s use of your respective Submission and agree not to sue or assert any claim against Sponsor & Others arising out of or connected to the use of the Submission or your participation in this Promotion. ). (C) INDEMNIFICATION/RELEASE: You further agree to indemnify and hold Sponsor & Others harmless from any and all claims, damages, expenses, costs (including reasonable attorneys' fees) and liabilities (including settlements), brought or asserted by any third party against any of them due to or arising out of your Submission, or your conduct in creating a Submission or any portion thereof or other actions in connection with this Promotion, including but not limited to claims for trademark infringement, copyright infringement; work product, violation of an individual's right of publicity or right of privacy; or defamation. You further agree to release and hold harmless Sponsor & Others from any and all claims that any advertising subsequently produced, presented, and/or prepared by or on behalf of Sponsor infringes your rights with regard to the Submission or any portion thereof."

And for those of you who are thinking about posting your blog through Kindle, the Silicon Valley IP Licensing Law Blog and Edward Champion's Reluctant Habits blog report on the terms to which you must agree to distribute your blog through Kindle. You may want to check their posts before checking the Amazon "Agreement to Terms" box.

Thanks to Thomas Di Nardo, Mary Ann Melton, Dave Murphy, and Karman Lee for submitting these alerts.

Copyright Office Responds to Washington Post Article

The Copyright Office has issued a notice in response to the recent report of long processing times for registrations:

A recent Washington Post article focused on the lengthy processing times the Copyright Office is experiencing in wake of its transition from a paper-based to an electronic processing environment. The Copyright Office is working diligently to improve processing times and service to the public in general. To clarify, current processing times by filing method are as follows:

E-Service with Electronic Deposit: 5 months for 90% to be completed; 33% completed in 2.5 months
E-Service with Physical Deposit: 6.5 months for 90% to be completed; 33% completed in 3 months
Paper Claims: 18 months for 90% to be completed; 33% completed in 12 months
You can save money and time and help us improve our services by filing claims online via eCO. Please visit www.copyright.gov for more information.

Hooray! Keep up the good work!

May 29, 2009

Help! I've Been Infringed!

You're sitting in your easy chair and surfing the web. You're not paying much attention, until you see it. It's your photo, but you did not post it there. You can't believe they used your photo without your permission. Now what do you do? The steps you take may limit your ultimate remedies so be sure to first understand what your options are.

Make Copies of the Infringement
If you think that the use is likely an infringement, make copies of it - both in electronic and print forms. Once the infringer realizes that she is caught, she will do what she can to get rid of the evidence of the infringement. You may need that evidence later.

If the infringement is in print, then take a photograph of it, scan it, photocopy it, and/or show it to another person who would be willing to testify about it. If the infringement is on the Internet and/or in electronic form, make a paper print of it and/or copy a screen capture of it; both are better! (Snagit by TechSmith is a great program to copy web pages.) Determine whether your copyright management information (CMI) is included in or has been removed from the infringing use. Read more about why and how to include your CMI in your photos in one of my blog entries here and here.

Make Sure That the Use Is an Infringement
Not all uses of your photographs are infringements. Do you use a licensing agency that may have authorized the use? Could the user be related to an entity to which you authorized the use? Is the use a fair use? While only a court can ultimately decide what fair use is, the law gives us guidelines as to what may qualify. Read more about fair use in my blog entry here.

Research the Infringer
Next, find out what you can about the infringer. Research the infringer's website to find his name and contact information. If the infringer is a corporation based in the United States, you can find information about it on the website of the Secretary of State for the state where the infringer is based. To find the Secretary of State's website using an Internet search engine such as Google, search the corporation's state's name (such as "Georgia") and the words "secretary of state." The extension of the URL will be ".gov" or ".us." Be careful - some sites attempt to appear to be the state's website so that they can charge you for the information. Once on the proper Secretary of State's website, look for "corporations search," "business search" or similar language. You then will find the company's registered or resident agent, officers, and/or official address.

You also may be able to find a contact name by searching the website's "who is" information. You first do a "whois" search on the website name. Several websites provide free "whois" services, such as http://www.whois.net/. Conduct an Internet search to find them. After you enter the website name there, you may be able to find contact information for the administrator of the website.

Option #1 - Do Nothing
Now that you've documented the infringement and have some information about the infringer, you always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it's not worth your time and effort to fight the infringement.

Option # 2 - Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use, such as who, what, why, when and where - see my blog entry here for more information. Include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website. You may get subsequent work from the infringer or others.

Option #3 - Prepare a DMCA Take-Down Notice
Purusant to the U.S. Digital Millennium Copyright Act ("DMCA") enacted in 1998, the Internet Service Provider ("ISP") that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user's website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner's agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party's contact information, a statement that the complaint is made in "good faith," and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article at here to learn more about how to prepare a DMCA take-down notice. Even if you don't reside in the U.S., you may use this great tool to stop an infringer whose ISP is in the U.S. from using your work.

Option #4 - Prepare a Cease and Desist/Demand Letter Yourself
When you don't want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It's best to do this in writing - a letter by surface mail seems to have more clout than email correspondence.

Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement - especially if you timely register your photographs - sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.

There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don't want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that "these discussions and offer to settle are an attempt to compromise this dispute."

Option #5 - Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a "contingency fee" which is based on the percentage of recovery. Or the fee may be a combination of both.

Option #6 - File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys' fees, as noted here.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.

In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only "actual damages" for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren't too speculative.

Additional Claims
While many photographers place "watermarks" including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it's fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement. More information is available in my blog entry here.

Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. "Willfulness" means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.

What You Can Do to Best Protect Your Images
To be eligible for maximum damages for copyright infringement and violation of your DMCA rights, put your copyright notice on each page of your website and put your CMI on or at least adjacent to each photo as well as in the metadata of your files. Instructions for adding your CMI to your metadata are available in my blog entry here.

Further, register your photos with the U.S. Copyright Office ASAP! The Copyright Office recently made online registrations possible, too. Check my article to learn the details and for instructions on how to register your work.

Conclusion
Infringements are rampant these days, both because it's easier for the infringers to find and copy your images and because too many people think that they have a right to use your photos when they don't or think that they won't be caught. Fortunately, there are many tools to battle copyright infringement. It's up to you to use them.

May 26, 2009

Copyright and Registration MisInformation

Rebecca Tushnet over at her 43(B)log (the name is related to Trademark Law) rightfully complains about the misleading information given in the Washington Post article referred to in my May 19, 2009, blog. The differences and the importance of keeping the terms of "copyrighting" vs. "registering" your copyrights separated is explained in more detail in my June 21, 2006, blog.

But the most important information provided in the Washington Post article is that it's taking a long time to get your registration certificate back from the US Copyright Office. Because most federal circuits follow 17 USC 411(a) of the Copyright Act strictly, you must have received the registration certificate for your copyright to file a copyright infringement action. While you can pay a "special handling" fee of an additional $685 to have your copyright registration expedited, that's a high price to pay. It's best if you register your copyrights as soon as possible. Check my article for information on how to register your copyrights using the eCO system.

May 19, 2009

Quicklinks - Copyright and TM Registrations, Shooting in NY, & Rights Grab

  • Copyright registrations are taking longer - Washington Post via Imaging Insider
  • Guidance given to NY police about the rights of and dealing with photographers - Carlos Miller.com
  • Registering your blog name as a trademark - Dear Rich
  • Ustream.tv takes "a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast and otherwise exploit such User Submissions in any form, medium or technology now known or later developed, including without limitation on the Site and third party websites" of your submissions and requires that you "execute and deliver such documents and provide all assistance reasonably requested by Ustream.tv to give to Ustream.tv the full benefit of the rights granted to Ustream.tv by you." - Ustream Terms of Service

Thanks to Walter Rowe and David Sanger for submitting these topics.

When You Definitely Need A Model Release

American Apparel used a still shot of Woody Allen dressed as a rabbi from the Annie Hall movie (shots of the billboard are shown here). Mr. Allen didn't like it and sued.

In general, when people are in public, you may photograph them. The use of the photographs can be restricted due to certain privacy rights. See my September 14, 2005, blog for a summary of the different privacy rights.

Mr. Allen's claims against American Apparel included violation of his rights under New York Civil Rights Law Sections 50 and 51 and for violations of Section 43(a) of the Lanham Act (15 USC 1125). You may review the specific sections of the NY laws online. Click on "CVR" for Civil Rights, then Article 5 for Right of Privacy.

Section 50 of the NY law states:

Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian [editor's note: a model release], is guilty of a misdemeanor.

Section 51 provides, in pertinent part:

Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action [editor's note: the court orders the defendant to do or to stop doing something] in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages [editor's note: money] for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.

Other parts of Section 51 are important for NY photographers to review but are not applicable to the Allen case:

[N]othing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; [and]

[N]othing contained in this article shall be so construed as to prevent any person, firm or corporation . . . from using the name, portrait, picture or voice of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith.

The Lanham Act is federal law and applies throughout the United States. Section 43(a) provides:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.


Privacy rights are recognized in most states, but the specific laws are different for each one. The National Conference of State Legislators and The Reporters Committee for Freedom of the Press provide an overview of them. Check with your attorney for more information.

The Allen lawsuit reportedly has settled for $5 million. What to learn from this case? Get a model release to protect yourself and to make your photos more attractive to potential buyers.

May 18, 2009

Update #2: Google Improves Terms for Photography Prize Competition!

As another follow up on the Google Photography Prize Competition, Google has revised its Terms and Conditions at the request of Martin Parr and Magnum Photos. Mr. Parr reported the progress of the changes on Flicker, using the moniker "parrpolygon." While the terms aren't perfect, they are much better.

Previous T&C:
However, by entering the Competition, and to the extent allowed by law, entrant grants Google and its affiliates, licensees, promotional partners, developers and third party marketing entities a non-exclusive, perpetual, worldwide, royalty-free license to edit, modify, cut, rearrange, add to, delete from, copy, reproduce, adapt, publish, exploit and use the Photographs themselves and the content of and elements embodied in the Photographs, including any names, locations and likenesses, for the duration of the rights, in any and all media, including but not limited to digital and electronic media, computer, and audiovisual media (whether now existing or hereafter devised), and specifically for use as an iGoogle theme, in any language, throughout the world, and in any manner, for trade, advertising, promotional, commercial, or any other purposes without further review, notice, approval, consideration, or compensation.

Current T&C:
However, by entering the Competition, and to the extent allowed by law, entrant grants Google and its affiliates, licensees, promotional partners, developers and third party marketing entities ("Permitted Users") a non-exclusive, perpetual, worldwide, royalty-free license to modify, rearrange, copy, reproduce and adapt the images only to fit the format required for an iGoogle theme, product web pages and marketing materials, and to publish and use the Photographs themselves and the content of and elements embodied in the Photographs, including any names, locations and likenesses, for the duration of the rights, in any and all media, including but not limited to digital and electronic media, computer, and audiovisual media (whether now existing or hereafter devised), specifically for use as an iGoogle theme, in any language, throughout the world, and in any manner, for advertising, promotional, commercial, or any other purposes related to the Google Photography Prize or in iGoogle branded content without further review, notice, approval, consideration, or compensation, provided that after the fifth anniversary of the awarding of the Photography Prize entrant may terminate this agreement with Sponsor by contacting Sponsor in writing, in which event entrant's Photographs and other materials in which entrant has intellectual property rights will no longer be reproduced or used by Permitted Users and will be removed within 30 days after receipt of notice by sponsor, except that Sponsor may continue to use such Photographs and materials in connection with the Photography Prize and the promotion thereof.

Here's a copy with the changes tracked (click to enlarge):


As a result of the changes, one prize includes (once again) "an invite to spend a day with Martin Parr."

Hooray!

Thanks to Paulo Rodrigues for contacting Mr. Parr and to Rodrigues and John Goldsmith for submitting this update.

May 16, 2009

Sharing the Love AND Your Photos?

iLovePhotos is "free software for your Mac that helps you organize, share, and enjoy your photos based on the people who are in them." But the terms of service provide:

In order for Blue Lava to make the Service available to you, you hereby grant Blue Lava a royalty-free, non-exclusive, perpetual, irrevocable, worldwide right and license which may be sublicensed or transferred, to use, display, distribute, reproduce, copy, make derivative works from, modify, adapt, transmit, translate, perform, publish and sell your Content in mediums or formats now known or later developed.

Blue Lava may work with third parties to provide users with the option to purchase DVDs, CDs, photo albums or photo books containing such users' content or other users' submitted Content. Blue Lava does not monitor such purchases or control the ultimate distribution or sharing of such Content by others.

Maybe that's a little bit more love than you want to share.

Thanks to Walter Rowe for providing this alert.

Update to Google's Rights Grab

As an update to the rights grab by Google reported in my May 9, 2009, blog, the only change is a a bad one. While the rights-grabbing terms are the same, Martin Parr is no longer part of the prize package.

It appears Parr saw the light. Too bad Google hasn't.

Thanks to Paulo Rodrigues for the update.

May 15, 2009

Update to Photography Not Allowed - 31

The world is buzzing about the Shane Becker incident reported in my previous blog, including Seattle's newspaper, The Stranger.

Check the quote by Attorney Doug Klunder there:

"These come up all the time, and the ultimate answer ends up being yes [the photographer] had the right to take the photo and should not have been arrested and detained. It would be really nice if officers would start realizing that [before making an arrest] rather than going through this rigmarole."

Ditto!

May 13, 2009

Trademarks Removed In Photos of Flight 1549

Photographers often take pictures that include trademarks or trademarked items in them. Trademarks are words, symbols, packaging, colors, sounds, scents or a combination of these that allow customers to identify the source of goods or services. Infringing a trademark occurs when the use of the mark causes likelihood of confusion as to the source of the product or service.

Trademark law also provides protection for trademarks from dilution by blurring and dilution by tarnishment. Blurring occurs where the connection in the consumers' minds between the trademark owner's mark and the trademark owner's product or service is weakened. Tarnishment is when the use of the mark is unsavory or unwholesome or when the mark is used in connection with inferior products.

However, trademark law allows for noncommercial and fair uses, such as nominative or descriptive uses, of trademarks. You may also use trademarks in all forms of news reporting and news commentary.

So why would US Airways require Stephen Mallon to remove the US Airways logo before posting photos of the airplane from Flight 1549 that had an emergency water landing on his blog or on Wired.com? PDN Pulse has the before and after shots.

Nothing about the uses of Mallon's photos would infringe or dilute US Airways' trademark. At minimum, these are nominative and/or noncommercial uses and likely would be considered news reporting. Instead, this is another ridiculous control of photographers that is not based on the law. Check my September 21, 2008 and March 23, 2009 blogs for other examples of this struggle.

May 11, 2009

PhotoLegal.com Podcasts and Info for UK Shooters

If you shoot in the United Kingdom, be sure to check out the PhotoLegal podcasts and information. The hosts get their info from a co-host solicitor (an attorney who counsels clients outside the courtroom), which is much better than relying on opinions from photography forums.

Photography Not Allowed - 31

Shane Becker reports on his experience after he photographed some guards replenishing an ATM in an REI in Seattle.

Thanks to Brian Johns for submitting this alert.

May 9, 2009

Rights Grabs Are Rampant

REI is at it again. It's offering a chance for its members to "share" their photos. But the terms are onerous:

I irrevocably grant to Recreational Equipment, Inc., its affiliates, agents, representatives, licensees and assigns ("REI") in perpetuity, for no additional consideration, permission to use the photographs . . . an unlimited number of times in any manner REI deems fit . . . . I agree to release, discharge, indemnify and hold harmless REI . . . from any liability, claim, damage, judgment, cost, loss, expense . . . by virtue of any publication or use of the Photos as previously described. I agree that in the event of a dispute arising out of the use of the Photos, my damages shall not exceed Fifty Dollars ($50.00) and in no instance shall I be entitled to seek an injunction against REI's use of the Photos.

Compare REI's previous rights grab as reported in my Sept. 18, 2007, blog.

Now Google has joined this unfortunate club. Its Photography Prize competition offers great prizes:

36 shortlisted entries will be turned into iGoogle themes, shown on Google and put to public vote.

6 finalists will be exhibited at the Saatchi Gallery London, and reviewed by our independent jury. The finalists will be invited to the private view of the exhibition on 23rd June 2009 (with travel and accommodation included).

1 winner will receive a £5,000 ($7500 USD) bursary and an invite to spend a day with Martin Parr.

But they come at a price. The terms and conditions provide:

However, by entering the Competition, and to the extent allowed by law, entrant grants Google and its affiliates, licensees, promotional partners, developers and third party marketing entities a non-exclusive, perpetual, worldwide, royalty-free license to edit, modify, cut, rearrange, add to, delete from, copy, reproduce, adapt, publish, exploit and use the Photographs themselves and the content of and elements embodied in the Photographs, including any names, locations and likenesses, for the duration of the rights, in any and all media, including but not limited to digital and electronic media, computer, and audiovisual media (whether now existing or hereafter devised), and specifically for use as an iGoogle theme, in any language, throughout the world, and in any manner, for trade, advertising, promotional, commercial, or any other purposes without further review, notice, approval, consideration, or compensation.


It's up to you as to whether you play. Just know the rules of the game.

Thanks to Michael Calanan and John Goldsmith for submitting these alerts.

May 6, 2009

Suing the Government for Copyright Infringement

Copyright infringement is rampant these days and often is committed by those who should know better. The ultimate remedy to sue infringers in federal court. But what if the infringer is the government - can you sue it for copyright infringement?

Generally, the governement (a/k/a the "sovereign), may not be sued unless it has specifically agreed to be sued. This legal concept is called "Sovereign Immunity."

The federal government has specifically waived its immunity from copyright infringement lawsuits. 28 USC 1498(b) provides, in part:

[W]henever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims [not a district court] for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504 (c) of title 17, United States Code . . . .

Because the remedies are limited to "recovery of . . . reasonable and entire compensation as damages for such infringement, including the minimum statutory damages," you may not be awarded attorneys' fees, an injunction, or big statutory damages. Thus, it may not be worth the time and expense of the suit. An option would be to attempt to negotiate a settlement.

Further, because a violation of the DMCA is not copyright infringement and the federal government has not specifically waived sovereign immunity for those claims, it can not be sued for claims based on the DMCA statutes (read my July 3, 2007 blog for more information).

Whether state governments have immunity from copyright infringement suits is not so clear. The Copyright Remedy Clarification Act ("CRCA"), at 17 U.S.C. 511(a) states that:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

However, most courts have held that Congress did not have authority to waive a state's immunity because the statute violates the Eleventh Amendment of the U.S. Constitution:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

and Congress did not have the authority to exercise the power to waive that immunity under section 5 of the Fourteenth Amendment.

So what can you do if you find that a government entity has infringed your copyright? One option is to sue the individuals responsible for the infringement. Sovereign immunity does not protect governmental employees sued in their individual capacity, even for employment-related acts. As long as the government is not responsible for paying the damages, courts generally have not extended immunity to government employees if the judgment against them will be paid only from their personal funds.

Thanks to Gregg Zivney for submitting this topic.

May 3, 2009

Taking More Than Their Fair Share

The problem continues. More companies are taking more rights than are needed to run their photo contests.

Ryan Dlugosz reports on The Krohn Conservatory and Cincinnati.Com/NKY.com's Butterfly Show Photo Contest where the rules provide that:

By entering the Contest, each contestant grants to Sponsor an exclusive, royalty-free and irrevocable right and license to publish, print, edit or otherwise use the contestant's submitted entry, in whole or in part, for any purpose and in any manner or media (including, without limitation, the Internet) throughout the world in perpetuity, and to license others to do so, all without limitation or further compensation. Each contestant further agrees that if his/her entry is selected by Sponsor as the winning entry, he/she will sign any additional license or release that Sponsor may require, and will not publicly perform or display his or her submission without the express permission of Sponsor.

The prize in exchange for this license? "The top three vote getters will receive four tickets to the 2009 Butterfly Show and a $25 gas gift card."

AMD is sponsoring a video contest and a photo contest to celebrate its 40th Anniversary. Entering either contest means that you agree lose your copyright and waive other rights, as follows:

8. SPONSOR'S RIGHTS TO ENTRIES: By submitting a Video Entry and/or Photo Entry, each entrant:

a. Irrevocably grants to the Sponsor, its agents, licensees, and assigns the unconditional and perpetual (non-exclusive) right and permission to copyright, reproduce, encode, store, copy, transmit, publish, post, broadcast, display, publicly perform, adapt, modify, create derivative works of, exhibit, and otherwise use the Video Entry and/or Photo Entry as-is or as-edited (with or without using the entrant's name) in any media throughout the world for any purpose, without limitation, and without additional review, compensation, or approval from the entrant or any other party.
b. Forever waives any rights of copyrights, trademark rights, privacy rights, and any other legal or moral rights that may preclude the Sponsor’s use of the Video Entry and/or Photo Entry, or require the entrant's permission for the Sponsor to use the Video Entry and/or Photo Entry.
c. Agrees not to instigate, support, maintain, or authorize any action, claim, or lawsuit against the Sponsor on the grounds that any use of the Video Entry and/or Photo Entry, or any derivative works, infringes any of the entrant's rights as creator of the Video Entry and/or Photo Entry including, without limitation, copyrights, trademark rights, and moral rights.

Thanks to Ryan Dlugosz and Ryan Britton for submitting these topics.