Photo Attorney

Jul 28, 2009

Quicklinks from Around the World

  • If you're a British citizen or resident, check out the petition to the Prime Minister to ban companies from grabbing the intellectual property rights to photographs in carefully worded competition terms and conditions.
  • Great Quote: "Stealing the intellectual property of others is no different from any other form of thievery," U.S. Attorney Kevin J. O'Connor stated. "It is a priority of this Office and the Department of Justice to protect the intellectual property rights of our nation's inventors and creators."
  • theNewspaper.com reports that East Sussex, UK County Council insists that speed camera photographs are copyrighted material that may not be published. The question is whether they contain the modest amount of originality required for copyright protection.
  • MySpace updated its Terms of Use in June and appropriately limits its license:
By posting any Content on, through or in connection with the MySpace Services, you hereby grant to MySpace a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on, through or in connection with the MySpace Services . . . . This limited license does not grant MySpace the right to sell or otherwise distribute your Content outside of the MySpace Services or Linked Services.
. . . [Y]ou agree that by posting messages, uploading text, graphics, photographs, images, video or audio files, inputting data, or engaging in any other form of communication with or through the Website, you grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, adapt, translate, enhance, transmit, distribute, publicly perform, display, or sublicense any such communication (including your identity and information about you) in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so.
By entering, you grant to Sponsor a non-exclusive, worldwide, royalty-free license to edit, publish, promote, republish at any time in the future and otherwise use your submission, along with your name and likeness, in any and all media for any purpose, without further permission, notice or compensation (except where prohibited by law).

  • The AP reports that Tiburon, CA, plans to photograph every car and use the license plate information to solve crimes.


Thanks to Steve Griffin, Larry Works, Bryan Broyles, Bradford A. Patrick, Esq., and Debra Frieden for submitting these topics.

Jul 22, 2009

Is Taking, Selling or Publishing Images of Hunting, Fishing, or Trapping Illegal?

The Professional Outdoor Media Association (POMA) and others are concerned that the ramifications of the government's case against Robert J. Stevens will result in making it a felony to take, sell or publish images of hunting, fishing or trapping. Stevens, a resident of Virginia, was convicted of knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. ยง 48.

Law enforcement officers bought from and indicted Stevens for three videotapes. The first two tapes, entitled "Pick-A-Winna" and "Japan Pit Fights," shows 1960s and 70s footage of organized dog fights that occurred in the United States and involved pit bulls, as well as footage of more recent dog fights, also involving pit bulls, from Japan. The third video, entitled "Catch Dogs," shows footage of hunting excursions in which pit bulls were used to "catch" wild boar, as well as footage of pit bulls being trained to perform the function of catching and subduing hogs or boars. The footage in all three videos is accompanied by introductions, narration and commentary by Stevens, as well as literature that was written by Stevens.

The Court of Appeals for the Third Circuit overturned the conviction, finding that the statute for which Stevens was convicted violates free speech. The Court noted that:
The legislative history for Section 48 indicates that the primary conduct that Congress sought to address through its passage was the creation, sale, or possession of "crush videos" (films that cater to fetishists who gain sexual gratification from watching women torture and kill small animals by stepping on them). . . . The government interests identified in the House Committee Report in support of Section 48 . . . is . . . in "regulating the treatment of animals.' . . . [to] discourag[e] individuals from becoming desensitized to animal violence generally, because that may serve to deter future antisocial behavior toward human beings. . . . " [Accordingly,] we will strike down 18 U.S.C. Section 48 as constitutionally infirm because it constitutes an impermissible infringement on free speech.

In a footnote of the Court's opinion, the Court noted that "18 U.S.C. Section 48 might also be unconstitutionally overbroad. The Government is too quick to conclude that a reading of the statute that covers a wide variety of ostensibly technical violations like hunting and fishing will not lead to prosecutions. . . . If a person hunts or fishes out of season, films the activity, and sells it to an out-of-state party, it appears that the statute has been violated."

The Government has appealed the Third Circuit's holding to the U.S. Supreme Court. POMA has filed an Amicus Curiae Brief and has a website to give updates on the case. POMA argues that the statute:
is overbroad and therefore unconstitutional. By its plain terms, the statute sweeps broadly: it criminalizes images "where an animal is wounded or killed" even if the underlying conduct, as with lawful hunting and fishing, is legal where it occurred. Under the statute, outdoor photographers and journalists who engage in their livelihood do so at their peril. These members of the media capture images of hunting and fishing for publication in the many outdoor sports magazines and other materials that are widely distributed and read throughout the United States. Their otherwise lawful conduct falls squarely within the zone of conduct that the statute criminalizes.

The phrase, Amicus Curiae, means "friend of the court" and the brief is filed by "someone who is not a party to the litigation, but who believes that the court's decision may affect its interest." William H. Rehnquist, The Supreme Court, page 89. As explained by Rule 37 of the Rules of the Supreme Court, "an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court."

A variety of other groups have filed Amicus Briefs, as well, including: International Society for Animal Rights, American Law Professors, Humane Society of the United States, Animal Legal Defense Fund, and the Center on the Administration of Criminal Law. The oral arguments before the Court will be held on Tuesday, October 6, 2009. It should be an interesting day and we hope that outdoor photographers' rights won't be impinged.

Thanks to Lisa Snuggs for submitting this topic.

Jul 21, 2009

UK Woman Detained for Filming Police Officers

The Guardian UK reports on a young woman who is challenging the police for handcuffing and detaining her and threatening her with arrest for filming the officers with her mobile phone.

Thanks to Colin McDonald for submitting this alert.

Jul 20, 2009

Identifying Website Owners for Copyright Infringement Claims

Copyright infringement on the Internet is rampant these days. As explained in my article entitled, "Help! I've Been Infringed," one way to identify the infringer is to search for the website's "who is" information. After you enter the website name, you may be able to find contact information for the owner or administrator of the website.

But some website owners hide their contact information by registering their domains through a "proxy" or agent. When you search the "who is" information, you'll see a proxy company's name instead of the true website contact's name. Fortunately, the Copyright Act provides a way to get around that to determine the true owner of the website.

Specifically, 17 USC 512(h) allows the copyright owner to request a subpoena to a service provider for identification of an alleged infringer. You need three things to get the subpoena:

1. A "take down notice" pursuant to 17 USC 512(c)(3)(A). The details of this notice also are available in my article on "Using the DMCA Takedown Notice to Battle Copyright Infringement."

2. A draft subpoena that authorizes and orders the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

3. A sworn declaration that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under the Copyright Act.

You then serve the Take Down Notice and the Subpoena on the proxy website representative.

For example, DomainsbyProxy.com allows for private registration of a domain through its service. It also provides the procedures to subpoena its customer information. Amazingly, DomainsbyProxy.com charges you for that information that you're entitled to get by law:
  • Research - $75.00/hour
  • Federal Express - Cost as Billed
  • Copies - $.25/page
[Ed. note: What a racket!]

While the infringer can make it difficult to find it, it cannot hide. It's all part of the process in protecting your work.

Jul 17, 2009

Quick Links, Rights Grabs, and Updates

  • The Copyright Office is proposing to amend its regulations to require that applications for registration paid for by deposit account debits be submitted electronically using the electronic Copyright Office (eCO) registration system. The Office is also requesting comment as to whether deposit accounts offer sufficient efficiencies to continue offering this service. Comments are due by August 28, 2009. For further information, go to the Copyright Office.

  • The Copyright Office is proposing to amend its regulations governing mandatory deposit of electronic works published in the United States that are available only online. The amendments would establish that such works are exempt from mandatory deposit until a demand for deposit of copies or phonorecords of such works is issued by the Copyright Office. They would also set forth the process for issuing and responding to a demand for deposit, amend the definition of a complete copy of a work for purposes of mandatory deposit of online-only works, and establish new best edition criteria for electronic serials available only online. Comments are due by August 31, 2009. Check the Copyright Office website for more information.

  • The Wall Street Journal reports that the Justice Department is investigating the Google Book Settlement to make sure that it doesn't violate antitrust laws.

  • Jim Goldstein explains how his DVD with the deposit copies of his photos for his copyright registration was damaged. The US Copyright Office gives tips on how best to packages to it:

    To avoid damage to your deposit from Library security measures, please package the following items in boxes rather than envelopes for mailing to the Copyright Office:

    - electronic media such as audiocassettes, videocassettes, CDs, and DVDs
    - microform
    - photographs
    - slick advertisements, color photocopies, and other print items

    Also please note that CDs packaged in standard full-sized jewel boxes are more likely to survive the mail irradiation process than those packaged in slim-line cases.

  • The band, Jane's Addition, is asking photographers to sign this rights-grabbing "Photo Release" before granting them a photo pass.

  • The Roses on the Windshield Photo Contest requires that you pay a $42 entry fee and "by submitting your story and / or photo you . . . assign all rights to your story and / or photo to Roses on the Windshield (roses) or (Paul Flood Marketing, LLC).

  • Bravo TV is conducting casting calls for "contemporary artists" with mediums such as painting, sculpture, installation, video, photography, mixed-media for an "hour-long creative competition series among aspiring contemporary artists" called "Untitled Art Project." Unfortunately, by signing the Application to appear on the show, you agree (on pages 16-17) that:
    Releasees exclusively own all right, title, and interest (including, without limitation, all copyrights) . . . to any materials [you] have provided or may provide in connection with this applications, the Program and the contestant selection process . . . (the "Materials") [and] the right and a worldwide, perpetual, transferable license to edit, alter or modify the Materials and to use all or part of the Materials . . . that I may submit . . . in any and all media now known or hereafter devised, throughout the universe, in perpetuity . . . in connection with advertisements, promotion, publicity, marketing and merchandising, or otherwise. I grant the rights hereunder whether or not I am selected to participate in the Program in any manner whatsoever. I understand that I will not be paid any money for giving Releasees these rights . . . .

  • By entering the AnchorBank's 2010 Calendar Photo Contest:
    You also hereby grant to us, our affiliates and licensees, a royalty-free, non-exclusive, perpetual, worldwide right to copy, edit, adapt, distribute, perform, display, and/or use, these photographic images, including any derivative works created from these materials, in whole or in part, for any purpose and in any manner, form, format or medium, now known or later developed, including without limitation, on the Internet, in print and on-air, and/or in any advertising or promotions. . . . You also grant to us the right to sublicense to any person or entity the unrestricted right to exercise any of the rights you have granted to us in this agreement.

  • thisMoment is a website that allows users to save and share "the Moments of your life." By using its service:

    you hereby grant thisMoment a worldwide, non-exclusive, royalty-free, irrevocable, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the Site and thisMoment's (and its successors' and affiliates') business, including, without limitation, for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. By posting User Content, other than as "Private," you are granting (a) to all members of your Friends group, and/or (b) to the general public, permission to use your User Content as permitted by these Terms of Use, including, without limitation, a non-exclusive, world-wide, royalty-free license to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your User Content without having your name attached to it.

  • Twitpic lets you share your photos on Twitter, but then they can be shared elsewhere. The Terms provide:
    By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites." You may view recently-submitted Twitpic photos on its home page. Those photos then can be used by others: "Twitpic Community Guidelines specify that if you post a Twitpic photo on an external website, the photo must link back to its photo page.
Thanks to Matt Ward, Walter Rowe, Patty Hankins, Aaron Wulf, Troy Freund, Janet White, Carlo A. Balistrieri, and Ryan McGinnis for submitting these topics.

Jul 14, 2009

Update on Daniel Moore's Lawsuit

The Tuscaloosa News has provided another update on the University of Alabama's lawsuit against Daniel Moore for his use of UA's trademarks in his paintings. Moore is making good on his promise to not settle the matter if it infringes on his (and, as a result, our) First Amendment rights. Check my January 5, 2006, blog entry for a history of the case that began in 2005. That's a lot of legal fees and, unfortunately, the matter does not appear to be close to an end.

Garcia Files Motion to Intervene in Fairey/AP Lawsuit

Last week, Mannie Garcia, the photographer who took the photo of Obama that was used for the "Hope" poster, filed a motion to intervene as a defendant in the lawsuit between Fairey and the AP. He's claiming that he owns the photo - not the Associated Press. He wants the right to file cross-claims (against AP) and counter-claims (against Fairey).

Such motions are granted as long as they are timely and won't "prejudice" (damage or bias) the parties and when the movant's rights will be impaired if he isn't part of the lawsuit. It's going to get interesting!

Thanks to Mike Ray for submitting this topic and motion.

Jul 13, 2009

Protecting What's Yours

Check out Rob Sylvan's great article in Layers Magazine (also available online) on the different ways to protect your photographs.

Jul 11, 2009

The Power of Linking

As a follow up to my July 3, 2009 blog entry regarding Judge Posner's proposal to address the potential demise of newspapers, Simon Owens discovered and reports on how powerful linking can be.

Shepard Fairy Pleads Guilty to Vandalism

The AP reports that Shepard Fairey pleaded guilty to three vandalism charges and, along with paying a fine, "cannot possess tagging materials - such as stickers or paste - in Boston except for authorized art installations. He also must tell officials when he plans to visit Suffolk County, where Boston is located."

Meanwhile, Fairy's case against the AP rolls along slowly, as is normal for civil litigation. Amended Pleadings are due by 8/21/2009. Fact Discovery is due by 8/14/2009. The next status conference is 9/11/2009, to discuss all following stages.

Jul 9, 2009

Copyright Office Increases Most Fees

As of August 1, 2009, the U.S. Copyright Office will adjust some of its services fees. The new fees are based on the cost of providing services and reflect cost savings associated with the implementation of electronic processing in the Copyright Office in 2007.

The fee for online registration of a basic claim will remain $35. The registration fee for fill-in Form CO will rise from $45 to $50; however, if a faulty version of Form CO is submitted, making it necessary to process the claim as a paper filing, the fee will increase to $65. The fee for paper filings on Forms PA, SR, TX, VA, SE will rise from $45 to $65. Two fees have been adjusted downward to reflect decreased costs resulting from the availability of records online. A full list of adjusted fees is available from the Copyright Office.

Jul 8, 2009

Andy Warhol's Derivative Works Blue

Think that the Shepard Fairy derivative work lawsuit is a relatively new issue? Check what Attorney Rich Stim says about it.

Jul 6, 2009

Q&A - Statute of Limitations for Use of Photos of Persons?

Q. Is there a statute of limitations for the use of a picture of a person in a public space with no model release? Can you use the image after a period of time?

A. Statutes of limitation, in general, are laws that prescribe the time limits during which someone can file a lawsuit. The deadlines vary with the type of claim and applicable law. 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.

Because copyrights are governed by federal law, there is only one statute of limitations for copyright claims. Copyright infringement claims are rights of the copyright owner of the photograph and have a three-year statute of limitations from the date of the infringement. See 17 USC 507(b). Some courts start counting the three years when you had a reasonable chance to discover the infringement.

However, the right of publicity or misappropriation, one of the rights of privacy, is different. It involves the commercial appropriation of someone's name or likeness. The claim belongs to the person in the photo. Violations occur when someone uses the name or likeness of another without the person's consent, usually for advertisements, endorsements or trade. That is why model releases are so important; they document that you have people's permission to use their likeness.

The violation of a person's right of publicity is a personal injury tort and begins when the photo is first used in a commercial manner (although many states start counting the time when the person could have reasonably discovered the use of the photo). Since this is a state right, rather than based on federal law, the statute of limitations varies by state law. The applicable state law is usually where the photo was published and/or the person is injured. For most states, the statute of limitations for this type of personal injury is two years, but can range from one to six years. Further, some states only recognize the right for celebrities or public persons. In those states, however, the violation may be an intrusion into the person's seclusion.

But in most states, a person's right of privacy/publicity dies with the person. In the few states where the right survives, the person must have used his or her celebrity during her life or the person's name or likeness had commercial value at the time of death (such as in California). Other states allow this right only to certain persons (such as those who died within fifty (50) years prior to January 1, 1986 in Oklahoma). For more information, check Attorney Andrew Berger's article on editorialphoto.com.

Of course, First Amendment uses of a person's name or likeness, such as for newsworthy purposes, is an editorial use and does not need a model release. Since there are uses that are not clearly editorial, it's always safest to get a release!

Thanks to Rich Collins for submitting this topic.

Jul 3, 2009

A Proposal to Address the Potential Demise of Newspapers

Judge Richard Posner currently is a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and is on the faculty at the University of Chicago Law School. He is a prolific writer, including a book entitled "The Little Book of Plagiarism" (an excellent read).

Recently on his blog that he shares with Gary Becker, Judge Posner proposed an expansion of copyright law to ban linking/paraphrasing of newspaper stories in an effort to ensure the viability of the industry. His proposal, not surprisingly, is being discussed by many. To find a vast selection of them, just search "Posner" and "copyright." While the Judge's proposal seems extreme, such extreme ideas lead to discussion, analysis, and - hopefully - resolution.

Jul 2, 2009

What the Duck - 745


Ed. note - there is no right of publicity for animals!