Photo Attorney

Aug 31, 2009

Planned eCO Service Outage

eCO, the Copyright Office online system for filing copyright registrations, will be unavailable from 8:00 p.m. on Friday, September 4 until 12 noon on Saturday, September 5, eastern time, while the Library of Congress performs a critical equipment installation. For further information about eCO, go to the Copyright Office website.

Aug 24, 2009

Quicklinks - Lessons To Be Learned

*Hollywoodscoop.com reports that George Clooney is suing a photographer who "climbed over the wall on Clooney's property and took pictures of a 13-year-old girl changing in one of his guest rooms." If true, then the photographer may be found liable for trespass, invasion of privacy, and/or intentional infliction of emotional distress, among other claims.

Lesson #1 - don't trespass to take a photo.

Lesson #2 - don't take a photo of a person who has an expectation of privacy.

*
Switched.com tells of a Flickr user whose account was hacked and lost 3,000 photos.

Lesson #3 - back up your photos.

*The EFF explains how the Burning Man Organization is planning to control your photos taken at the annual event. The Terms and Conditions state:

I UNDERSTAND AND ACCEPT THAT NO USE OF IMAGES, FILM, OR VIDEO OBTAINED AT THE EVENT MAY BE MADE WITHOUT PRIOR WRITTEN PERMISSION FROM BURNING MAN, OTHER THAN PERSONAL USE. I understand that I have no rights to make any non-personal use of any image, film, or video footage obtained at the event, and that I cannot sell, transfer, or give the footage or completed film or video to any other party, except for personal use, and I agree to inform anyone to whom I give any footage, film, or video that it can only be used for personal use.
and

I acknowledge that the Burning Man name and logo are the property of the Burning Man organization, and I understand that the Burning Man organization controls all rights regarding the licensing and reproduction of any imagery recorded at the event . I agree that I will not use the mark or logo of Burning Man or likeness of the Man on any website or in any commercial manner.

Lesson #4 - Either stay at home or don't take your camera.

* Photographers often are hassled when shooting in public.

Lesson #5 - take a cheat sheet with you, either the Bust Card if shooting in the UK, the Street Photographers Rights if in Australia, or the Photographer's Rights if in the US.

Thanks to Walter Rowe, Mike Howard, and Peter Preston for submitting these topics.

Aug 16, 2009

Photographer Awarded $1,000 for Unauthorized Use of Photo

Christopher Boffoli reports that he was awarded $1,000 plus court costs in the "small claims" court of the King County District Court System (state court) in Seattle for the unauthorized use of his photo. His case was against a real estate agent who used one of his images in one of her commercial listings. He reports on the events at Photo.net.

While copyright infringement claims must be pursued in a federal court, some courts have treated copyright infringement as a breach of contract claim, which can be decided by a state court. The option usually is available in those circumstances where the parties negotiated a license deal but the user failed to pay. Check my January 18, 2006, blog entry for more information.

We can't tell whether the judge in Christopher's case treated his complaint as a breach of contract. However, subject matter jurisdiction can never be waived, so there is a risk that the judgment could be vacated. Further, most federal courts require that your photograph be registered with the U.S. Copyright Office before the court has jurisdiction to hear your copyright infringement claim. See 17 U.S.C. 411 ("no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title") and my March 26, 2005, blog entry for more information.

In sum, while the judgment is at risk of being challenged for subject matter jurisdiction, it would cost the defendant a lot more time and money to dispute it - only to be vunerable to the same result (or worse, if Christopher's photo was timely registered) in federal court. But it's safest to pursue infringement claims in federal court.

Congrats to Christopher to standing up for his rights!

Aug 10, 2009

Copyright News

* Special Handling Fee to Be Suspended for Claims Pending over Six Months When Registration Is Needed for Litigation Purposes

The Copyright Office is publishing an interim rule relating to fees for special handling of registration claims that have been pending for at least six months. Special handling is the expedited processing of an application and is granted in certain circumstances when compelling reasons are present. Because of current delays in the processing of applications for registration occurring in the course of the Office’s implementation of its business process reengineering program, the Office has determined that the special handling fee, which is in addition to the regular fee for an application to register a copyright claim, will not be assessed for conversion of a pending application to special handling status when the application has been pending for more than six months without any action by the Copyright Office and the applicant has satisfied the Office that expedited handling of the registration is needed because the applicant is about to file a suit for copyright infringement. This interim rule is effective on August 10, 2009, and will expire on July 1, 2011. For further information, go to the Copyright Office website.

* The International Intellectual Property Alliance (IIPA) released today its latest economic study which indicates that the U.S. copyright industries continue to lead the U.S. economy in their contributions to job growth, gross domestic product (GDP), and foreign sales/exports.

Copyright Industries in the U.S. Economy: The 2003-2007 Report, written by Stephen Siwek of Economists Incorporated, was completed for the IIPA and updates eleven previous studies detailing the economic impact and contributions of U.S. copyright industries - including theatrical films, TV programs, home video, DVDs, business software, entertainment software, books, music and sound recordings - on the U.S. economy. This report was released today at an event held at the U.S. Department of Commerce with Secretary of Commerce Gary Locke.

"The 2009 edition of this study shows how significantly the U.S. copyright industries contribute to U.S. job and revenue growth, wages, and to U.S. international trade," said Eric H. Smith of the IIPA. "This study (covering data from 2003-2007), like those that preceded it, strongly supports the continuing need for our government to focus its full attention on the economic and social importance of the creative industries within our 21st century economy. Because these industries that depend on creativity and innovation contribute so significantly to economic growth and job creation in today's economy, our government, and governments throughout the world, must redouble their efforts to provide a safer environment for them to prosper."

Smith added, "The copyright industries are uniquely dependent on governments' willingness to adopt and enforce strong copyright laws that take into account changes in technology and new infringement threats that undermine creativity and innovation and the jobs and revenue that they generate. As globalization expands and Internet broadband penetration grows, our creators, our government and citizens in general must look to the great potential of a world of e-commerce to continue to create new jobs, revenue and to grow international trade. Only through the legal and secure transmission of valuable copyrighted content over the Internet can this continued growth and productivity be fully realized. Piracy threatens that growth and all governments must redouble their efforts to combat it."

Check the full report on the IIPA website.

Aug 9, 2009

Photography Not Allowed - 32

Trey Ratcliff reports on his blog how an Atlanta police officer told him that he could not photograph The Coca-Cola museum from the Centennial Olympic Park area. While the "World of Coca-Cola" website says that "The World of Coca-Cola welcomes photo and video cameras for personal use. Certain exhibits or special exhibitions may be excluded" (HT to www.imaginginsider.com), The Coca-Cola Company can't dictate your shooting if you're not on its property. It's generally not illegal to take photographs in a park. Nothing on the Centennial Olympic Park's Policies webpage prohibits photography or tripods.

As far as photographing trademarks, it's not a crime to take the photos, but it may violate the trademark owners rights in how the photos are used. Check my January 5, 2006, blog entry for more information. However, the police do not generally protect trademark rights (except for customs). My bet is that the cop was not relaying a message from The Coca-Cola Company, but was using the mandate as an excuse to try to intimidate Trey from shooting.

Thanks to Andie Smith and Alex Suarez for submitting this topic.

Aug 1, 2009

Photographs of Copyrighted Works


Arturo Di Modica, the sculptor who created the famous "Charging Bull" statue that has come to symbolize Wall Street, is busy protecting his work again. In 2006, he filed suit against Wal-Mart, galleries, and others for selling photos and reproductions of the bull without his permission. The Wall Street Journal reports that he now has sued Random house and and the authors of a new book entitled, "A Colossal Failure of Common Sense: The Inside Story of the Collapse of Lehman Brothers," for using an image of the bull on its dust jacket.

As previously explained in my March 13, 2009 and March 20, 2008, blog entries, courts have disagreed about whether photographing copyrighted works violates the copyrights in the works. It will be interesting to see how the District Court in NY handles this one!