Photo Attorney

Jun 29, 2009

The Response of Infringers

People who receive notice of copyright infringement respond in different ways. Some are apologetic, others are belligerent, and the rest fall in-between. Following are two responses that appear to be on the extreme end (ed. note - the photographers are not clients).

1. www.nomoporker.blogspot.com (click to enlarge):

Check the comments, too.

Thanks to Ken Shelton (the photographer who defended his rights) for submitting this.

2. E_B_A reports on emails he received from a guy who copied his images without permission and who demanded that E_B_A put them back.

Sadly amazing.

Jun 27, 2009

Copyright and/or Trade Dress Infringement of Website?

Wired.com reports on the similarity between Kayak's and Bing's websites. Rebecca Tushnet notes on her 43(B)log that Kayak might have copyright and/or trade dress infringement claims against Bing.

If you design your website and someone copies it, check with your attorney to see if you have a copyright and/or trade dress infringement claim.

Jun 26, 2009

PhotoLegal Podcast - US Special (Now with Fixed Audio)

Check out the latest edition of the PhotoLegal Podcast. I join Darren Hector, James Barisic, and Phill Price to compare U.S. copyright and other laws that affect photographers with those across the pond.

Jun 25, 2009

The Not-So-Fine Print


Here are some more terms and conditions that need close review (and some are alarming!):

Share the Experience Photo Contest - The Rules states that:

Submission of an entry in this Contest constitutes entrant's irrevocable assignment, conveyance, and transference to Sponsors of all right, title, and interest in the entry, including, without limitation, all copyrights.

Alliance of Actions Sports - The User Content Submission Agreement provides:

In connection with all User Content you submit using the User Content Submission Features, you grant to ALLI, and the Affiliates, the unqualified, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Content on the Site and any other channels, services, and other distribution platforms, whether currently existing or existing or developed in the future, of ALLI, and the Affiliates (collectively, the "Platforms"), for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to ALLI, and the Affiliates, in our sole discretion.

Nature Conservancy Digital Photo Contest:

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, and (ii) the right to use your name, city, state and country of residence in promotions and other publications.

City of Toronto Photo Contest - The Rules state:

By entering the contest, you agree to have any of your winning photos and photos that receive honourable mention displayed at City locations and used in City of Toronto print and electronic communication materials, advertising and promotional materials and on the City's website, for any purpose and at any time in the future, without any fee or other form of compensation.

Art Wolfe's Photo Contest:

By entering the contest, entrants grant Art Wolfe, Inc a royalty-free, world-wide, perpetual, non-exclusive license to display, distribute, reproduce, and create derivative works of the entries, in whole or in part, in any media now existing or subsequently developed, for any purpose, excluding resale. Any photograph reproduced will include a photographer credit. Art Wolfe, Inc. will not be required to pay any additional consideration or seek any additional approval in connection with such uses.
The rules apparently have been revoked. Of course, as a wonderful professional photographer, we're sure that Art doesn't need our photos for any purpose other than the contest!

Thanks to Bill Boswell, Thomas Di Nardo, Arcady Genkin, and Annie Libby for submitting these alerts.

Jun 24, 2009

News and Information on the Google Book Settlement

Many photographers are also authors. If you published a book before January 5, 2009, your work may be subject to a class action lawsuit brought by authors and publishers, claiming that Google has violated their copyrights by scanning their books, creating an electronic database, and displaying short excerpts without the permission of the copyright holders. As a member of the class, your rights may be effected unless you take action.

As the Cornell Legal Information Institute explains, a class action "is a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group. The class members [are those] who have suffered the same wrong at the hands of the defendant but who are too numerous for the court to adequately manage the lawsuit if each class member were required to be joined as named plaintiffs." If you meet the definition of the class, then you are part of the class, even if you didn't take steps to join the class. Instead, you must "opt out" of the class if you don't want to take part.

The class action lawsuit is entitled The Authors Guild, Inc., et al. v. Google Inc., Case No. 05 CV 8136 (S.D.N.Y.) The Court has preliminarily approved a settlement. The details are available at www.googlebooksettlement.com.

Some important deadlines are coming up in the settlement:
  • Claim your Books and Inserts: You can do this at any time, but in order to be eligible for Cash Payments for Books, you must complete your Claim Form on or before January 5, 2010.
  • Opt out of the Settlement:Must be submitted online or postmarked on or before September 4, 2009.
  • File an objection or notice of intent to appear at the Fairness Hearing: Must be postmarked on or before September 4, 2009.

If you're part of the settlement class, review the materials and talk with your attorney about what action you should take. To help explain what's going on with the case, the Copyright Clearance Center has posted a series of interviews, seminars, and presentations featuring leading experts who are well versed on the settlement and its various components.

This is another one of those circumstances that you must act now or forever hold your peace!

Jun 19, 2009

Orphan Works Legislation Is Making Noises Again

The Illustrators Partnership of America is reporting on its Orphan Works Blog that US Copyright Register Marybeth Peters told Intellectual Property Watch that the orphan works legislation is expected to be introduced within the next 10 days.

Like we don't have bigger problems. Stay tuned.

Jun 18, 2009

Protecting Your Photography Business Assets

Check the current issue of Digital Photo Pro for a great and important article by Samuel Lewis, attorney and photographer, about insuring your photography business assets.

For insurance companies who specialize in coverage for photographers, check Tom C. Pickard & Co. (which carries my insurance policy), Hill & Usher, or through a photography organization such as NANPA (which now offers a health insurance policy) and ASMP.

Jun 15, 2009

Protecting Your Trademarks on Facebook

Many photographers have a presence on Facebook for business purposes. As of Saturday, June 13th, you may choose a username for your Facebook account to more easily direct clients to your profile. So instead of your profile being www.facebook.com/profile.php?id=xxxxxxxxxxxx, your profile could be www.facebook.com/yourname.

To select your username, go to this Facebook link. To learn more about the Facebook usernames, visit the Facebook Help Center.

Further, if you have a registered trademark for your photography business, you definitely should consider acquiring the corresponding vanity URL (check the blog for more info) or making a filing with Facebook to prevent another party from acquiring a vanity URL with your trademark. The Facebook system only permits owners of registered trademarks to prevent another party from establishing a vanity URL with that registered trademark (so unregistered trademarks cannot be used for this purpose).

Jun 14, 2009

The 100th Anniversary of the 1909 Copyright Act Conference

The High Tech Law Institute and the Berkeley Center for Law & Technology recently co-sponsored a symposium on the 100th Anniversary of the 1909 Copyright Act. Two dozen distinguished scholars and practitioners, including David Nimmer, Of Counsel, Irell & Manella; William Patry, Senior Counsel, Google; and Marybeth Peters , Register of Copyrights, U.S. Copyright Office discussed the strengths and weaknesses of the 1909 Act and its effect on U.S. and international copyright law.

Materials from the conference are now available online. Check out the videos from the day (iTunesU client necessary to access)(panels from the conference are items 17-25). See photos of the event (I'm barely visible in the audience shots). Read some of the papers provided by the speakers and see some media coverage about the event and more details about the event.

Jun 12, 2009

Sen. Orrin Hatch's Remarks at the World Copyright Summit

CISAC, the International Confederation of Societies of Authors and Composers, recently held its second "The World Copyright Summit," on June 9 and 10 in Washington, D.C. "to provide a forum to exchange ideas, to debate diverse viewpoints and to discuss issues linked to intellectual property and creative content online." The Summit opened with an address by U.S. Senator Orrin G. Hatch regarding copyright and intellectual property issues, and the potential effects of legislation on right owners. Senator Hatch, Ranking Member of the U.S. Senate Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights, has a personal connection to the issue as he is also a platinum-level songwriter.

A copy of Sen. Hatch's remarks is available on IPwatchdog.com. Here are some of Hatch's comments of note, especially regarding his position on the Orphan Works Legislation:

. . . Appallingly, many believe that if they find it on the Internet then it must be free. I have heard some estimates cite no less than 80 percent of all Internet traffic comprises copyright-infringing files on peer-to-peer networks. . . .

. . . Currently, Congress is very active on a wide array of intellectual property bills. In between filling a Supreme Court vacancy, I am focused on updating our patent system, enacting legislation that expands the public performance right to include analog radio transmissions, passing orphan works legislation, and reauthorizing the Satellite Home Viewer Extension and Reauthorization Act. . . .

. . . I believe that artists should be compensated for their work. This is an issue of fairness and equity. . . .

. . . I also continue to be very active on passing orphan works legislation. Last year, the Senate unanimously passed bipartisan legislation to encourage the use of orphan works - works that may be protected by copyright but whose owners cannot be identified or located. Countless artistic creations - books, photos, paintings and music - around the country are effectively locked away and unavailable for the general public to enjoy because the owner of the copyright for the work is unknown.

. . . Unfortunately, it often isn't easy to identify or find these owners of copyrighted work. To make matters worse, many are discouraged or reluctant to use these works out of fear of being sued should the owner eventually step forward. . . .

. . . For years, I have been working with industry stakeholders and copyright experts, including Marybeth Peters, Register of Copyrights, to pass orphan works legislation. The bill seeks to unite users and copyright owners, and to ensure that copyright owners are compensated for the use of their works. I couldn't agree more with Register Peters when she said, "A solution to the orphan works problem is overdue and the pending legislation is both fair and responsible."

Some copyright owners, such as Hatch, may be more supportive of the Orphan Works legislation because of the compulsory licensing of the Copyright Act for nondramatic musical compositions, public broadcasting, retransmission by cable systems, subscription digital audio transmission, and nonsubscription digital audio transmission such as Internet radio. The royalties for those uses are set by law, so the only issue is collection. Photographers, on the other hand, set their own license fees, which is at risk with the orphan works legislation.

John Harrington also has posted interviews he conducted with Michael Heller, Robin Gibb, and Public Knowledge during the Summit. Unfortunately, as John noted, photographers, illustrators, and other visual artists were noticeably absent from the conference's speakers list and no photography organizations were present.

Jun 10, 2009

Quicklinks - Rights Grabs, No Photography Allowed, and Copyright Infringements

Photography Not Allowed

The Seattle Times reports: A photographer who was frisked, handcuffed, and detained by police after she snapped photographs of power lines has settled a lawsuit she filed against the city for $8,000.

Article by Nigel Hanson, media lawyer at Foot Anstey (United Kingdom): "When does street photography trigger privacy rights?"

Rights Grabs

EPUK reports: Renowned photographer, Simon Norfolk, pulled out of a major National Trust photographic project in protest over rights-grabbing terms in photo competition.

Tel Aviv in Focus Photo Contest: "By submitting your photo, you are giving the Federation rights to reproduce and use your image in any way."

National Geographic Energizer Ultimate Photo Contest: "By entering a photo in this Contest, Entrant grants a nonexclusive, transferable, royalty-free, worldwide license Sponsor and Energizer to edit, adapt and publish such photo in connection with the Contest and promotion of the Contest, and Sponsor may use the photo in connection with the Contest and promotion of the Contest for advertising, marketing and promotional purposes in commerce and in any and all media now known or hereafter known throughout the world in perpetuity, without attribution, compensation, permission or further notification to the entrant, his/her successors or assigns, or any other entity, unless prohibited by law." Ed. note: It's good, however, that these terms limit the uses to those related to the Contest.

Peterman's Eye: "2. By posting or submitting content on or to the website (regardless of the form or medium), you are giving Peterman's Eye Publishing, and its affiliates, agents and third party contractors a nonexclusive, perpetual, irrevocable, worldwide, sub licensable, royalty-free license to use, store, display, publish, transmit, transfer, distribute, reproduce, rearrange, edit, modify, aggregate your content with other content, create derivative works of and publicly perform that content for any purpose on and through each of the services provided by Peterman's Eye and/or on other websites owned by Peterman's Eye Publishing or its affiliates or partners. This license shall apply to the distribution and the storage of your content in any form, medium, or technology now known or later developed."

Tagged.com: "Although Tagged does not claim ownership of content that its Member's may provide to Tagged, by providing content to Tagged, Members automatically grant, and represent and warrant that they have the right to grant, to Tagged a worldwide, irrevocable, perpetual, non-exclusive, and fully sublicenseable, license to use, copy, perform, display, and distribute said content."

Copyright Infringements-Violation of Right of Publicity

The Detroit News reports: Laszlo Regos alleges Wayne State University Press unlawfully copied his photographs for a recent book about Detroit's landmark Guardian Building.

Extraordinarymommy.com reports: A family photo was copied from the Internet and used for advertisement in Czechoslovakia.

Thanks to Cynthia Haselton, Mike Czupryn, Bryan Ghows, Chris Rabior, Steve Upperman, Damon D'Amato, Paulo Rodrigues, Aaron Wulf, and Michael Gordon, for submitting these topics.

Jun 5, 2009

Statutes of Limitation for Breach of Contracts

Many photographers enter into contracts with clients where the photographer agrees to perform photography services in exchange for payment. But what happens when you don't get paid after you've rendered the services?

A client's failure to pay for services rendered pursuant to contract constitutes a "breach of contract." If you can't otherwise get your client to pay, then you may sue for the payment in state court in a breach of contract action. When the amount due is relatively small, it may be easiest and best to file suit in "small claims" or "magistrate" court. Some courts have minimum amounts to sue starting at $1,000 and all have maximums ranging up to about $15,000. Even if you're owed more than the maximum, you can forego the excess and seek the maximum allowed by the small claims court.

Since the economy has slowed, some clients don't have money now. So you may want to wait a bit to sue, hoping that the client gets money later (balancing the risk that the client will go out of business). But the time that you have to make your claim is limited. This is based on a legal principle called "the statute of limitations." Statutes of limitation, in general, are laws that prescribe the time limits during which you can file lawsuits. The deadlines vary with the type of claim and depend on the state where the claim is made. The purpose of them is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain amount of time has passed.

In the United States, the statute of limitations to sue for breach of a written contract ranges from 3-15 years. It usually is a bit shorter for an oral contract. As an alternative, you may want to sue for copyright infringement instead of breach of contract if the client has used your photos without payment. Copyright infringement has a 3 year statute of limitations. Check my January 16, 2006, May 26, 2005, and August 15, 2008 blogs for more information.

Whatever you do, be sure to take steps to protect your work and your business!