5 Things to Know When Taking Photos

snow-goose-blue Copyright Carolyn E. Wright

Here are 5 things to know when taking photographs:

  1. Your photo is protected by copyright the second you take it.

A copyright is created at the moment a work is made into a fixed form. For authors, the copyright is created when you type the words on your computer. For photographers, it is created at the click of the shutter. For artists, it is created when the paint is applied to the canvas. Copyright law protects both unpublished and published works, regardless of whether they have been registered with the U.S. Copyright Office.

  1. You can (and should) use the copyright notice with your photo without registering it.

You don’t have to register your photos with the U.S. Copyright Office to post a copyright notice with them.  The official copyright notice has three parts: the first part is the © (the letter “c” in a circle), the word “Copyright,” or its abbreviation, “Copr.”  The second part notes the year when the work was first published.  The third required part of a copyright notice is the name of the copyright owner.  The final form looks like this: © 2016 Carolyn E. Wright.

While the copyright no­tice is no longer required for copyright protection, it is a good idea to use it.  It will remind others that your photos are protected by copyright. When you post a copyright notice with your registered images, then the infringer cannot claim that the infringement was innocent and a court is more likely to find that the infringement was willful, supporting the maximum in infringement damages.

  1. As the copyright owner of a photograph, you have exclusive rights to it.

When you own a copyright to a photograph, you have the sole right (also known as the “exclusive right”) to:

  • reproduce the copyrighted work;
  • display the copyrighted work publicly;
  • prepare derivative works based on the copyrighted work; and
  • distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

except when the use is a “fair use.” Learn more at http://www.photoattorney.com/the-fuss-about-fair-use/

  1. You may take photographs of things that are visible from public spaces.

No law prevents property from being photographed from a public area, including bridges, buildings, homes, airports, and accident scenes.  However, a property owner may restrict your photography when you are on the owner’s property.

  1. You may take photographs of people in public.

As long as people, including children, do not have an expectation of privacy, then you may photograph them. People have an expectation of privacy such as when they are in their home with the curtains closed (but not if the windows are not covered) or in a dressing room or bathroom.

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Federal Lands Photography Rules

Sequoia Layers - Copyright Carolyn E. Wright

When photographing on federal lands, it’s helpful to know the rules and carry a copy of them with you in case you are challenged. Here are links to them for your reference:

National Park Service

Permits and rules are dictated by each park, such as:

http://www.nps.gov/grsa/planyourvisit/upload/commercial_photography_guidelines.pdf

http://www.nps.gov/goga/planyourvisit/specialparkuses.htm

You can find a list of them here:

http://www.nps.gov/search/?affiliate=nps&query=photography%20permits

Wilderness Areas

http://www.fs.usda.gov/detail/r5/passes-permits/event-commercial/?cid=STELPRDB5349053

http://www.fs.fed.us/spf/tribalrelations/documents/nfsconsultation/QAs_CommercialFilmingWilderness.pdf

National Forest System

http://www.fs.fed.us/specialuses/documents/2709.11_40.pdf

BLM Land

http://www.blm.gov/wo/st/en/prog/more/lands/filming.html

Each local BLM office authorizes filming on public lands within its jurisdiction. Each location is unique and is subject to different conditions.

http://www.blm.gov/wo/st/en/info/directory.2.html

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Forest Service Chief Issues Directive on Photography Permits

Aspens on Color - Copyright Carolyn E. Wright

On November 4, 2014, U.S. Forest Service Chief Thomas Tidwell issued a directive on commercial filming and photography permits.

He included lots of good nuggets in this directive. The most important to nature photographers is:

I also want to emphasize that commercial photography only requires a permit if the photography takes place at locations where members of the public are not allowed, or uses models, sets, or props.

Commercial film and photography permit fees should be primarily viewed as land-use fees. If the activity presents no more impact on the land than that of the general public, then it shall be exempt from permit requirements.

This follows past guidelines and regulations from the National Parks Service and Department of the Interior. BRAVO!

While these directives could change with a change of a new Chief, and while we probably need more clarification of what comprises models, sets, or props, this is a good turn of events.

HT: Jeff Conrad

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Do You Need a Permit to Photograph in Wilderness Areas?

Wild Stallion Fight - © 2014 Carolyn E. Wright (Taken on BLM Land)

Wild Stallion Fight – © 2014 Carolyn E. Wright (Taken on BLM Land)

This is a guest blog entry by Photographer Jeff Conrad (check his great Sun/Moon Calculator and article on Depth of Field), who has followed the legislation on permits to photograph on public lands for years, including this blog post in September 2013. Thanks for his clarifications and information on the recent proposal about photographing in wilderness areas below:

Permits to Photograph in Wilderness Areas?

By Jeff Conrad

A recent proposal (Federal Register, September 4, 2014) to revise the Forest Service Handbook has attracted considerable attention in the media, and has raised concerns among journalists and some amateur still photographers. Some articles have suggested that any filming or photography in a wilderness area would require an expensive permit (which might not even be issued), and that photographing without such permit could result in a $1500 fine. A petition on change.org opposing the proposal has gathered over 35,000 signatures.

The effect of this proposal is actually quite minor, serving mainly to clarify current wording that allows a permit to be issued

If it is to occur in a Congressionally designated wilderness area, and the activity contributes to the purposes for which the wilderness area was established.

The proposed wording is a considerable improvement, but some of the language is still vague, and should be clarified.

Although the impact of the proposal per se is minor, there are some issues with the overall FS rules for filming and photography; these rules apply to all National Forest System lands rather than just to wilderness areas, so their effects are far reaching. Because they result from regulation and policy outside the scope of the proposal, they cannot be addressed simply by revising the proposal.

Issues with the Proposal

The proposal essentially grants low-level enforcement personnel unfettered discretion to deny a permit. At the very least, it should be made clear that this does not apply to members of the press; preferably, some additional safeguards should be added reduce the chances of arbitrary issuance and denial.

The proposal specifically excludes “noncommercial still photography,” but the term is not defined, inviting photographers and enforcement personnel to synthesize a definition—probably not a good idea. This section does not come into play unless a permit is already required; accordingly, the exclusion appears to be without effect, so it could simply be eliminated.

Issues with the Regulation and Other Parts of the FSH

That so many people have failed to see the proposal in the context of the overall regulatory scheme suggests that the scheme is not as clear as it should be. But there also are substantive issues, not the least of which is the potential infringement of freedom of the press. Thomas Tidwell, Chief of the Forest Service, has recently given assurances that permit requirements will not be imposed on the press. But as several people have noted, an assurance that is at odds with regulation or formal written policy is at best tenuous, subject to revocation on a whim or change of personnel. For Chief Tidwell’s assurance to be meaningful, the regulation–and parts of the FSH—must be revised.

Issue with 36 CFR 251.51: Freedom of the Press

The regulation specifically excludes the coverage of “breaking news” from permit requirements, implying that coverage of other news does require a permit. The exclusion should be extended to any bona fide journalism, including, at the very least, that involving established freelancers. Unless the regulation is revised, Chief Tidwell’s assurances ultimately will not be very reassuring.

Issues with Other Parts of FSH 2709.11

Definition of “Sets and Props”

Public Law 106-206 prohibits requiring a permit for still photography unless the photography involves the use of “models” or “props.” These terms had well-established meanings in the context of regulating photography, but for some reason, the FS provided new definitions of these terms in FSH 2709.11, Chapter 40, and added the use of “sets” to the permit criteria. The definitions give meanings these terms have never had; especially novel is the inclusion of equipment in the definition of “sets and props.” And that definition could be read as implying that anything other than camera and tripod is a prop; if this is indeed the intent, it is poorly thought out. Taken literally, it would require a permit for a flash, a camera and long lens supported by two tripods, a camera mounted on a monopod, a camera resting on a folded jacket, a handheld light meter, a small collapsible reflector or diffuser, a laptop or tablet computer, a smartphone with a photography app, a camera bag, and many similar items. It is difficult to believe that Congress intended for use of such items to require a permit and proof of insurance. Perhaps it could be argued that common sense would control, but this would essentially delegate determination of what is a “prop” to low-level enforcement personnel, offending due process and inviting conflict with photographers who may have quite different ideas of what is a “prop.” So far, the definition does not appear to have led to significant problems, but it may simply be a matter of time—much like assurances that permits will not be required for the press when regulation and policy suggest precisely the opposite.

In theory, lists of equipment that does and does not require a permit could be refined. But in practice, this has proven an exceedingly difficult task, and nearly every attempt at doing so has failed miserably. The problem could be far more easily fixed by revising the definitions to give the same effect as former 36 CFR 5.5(b) on which the still photography provisions of Pub. L. 106-206 were modeled. Although that regulation was not perfect, it worked well in national parks for almost 50 years.

Still vs. Motion Images

There is an additional complication: digital imaging technology has changed considerably since Pub. L. 106-206 became law in May 2000. Most current cameras—including those in cell phones—can record motion as well as still images, and in many cases, it is impossible to determine which type of image is being recorded. Consequently, the distinction between still and motion images is probably no longer a valid criterion for determining when a permit is required. The issue could be addressed by a suitable definition of “commercial filming”; a starting point might be to eliminate “the creation of a product for sale” as an element of the definition—or at least modify its description.

History of the Current Regulations and Directives

It is easy to forget that the original objective of the legislation that resulted in Pub. L. 106-206 was simply to eliminate a provision at 43 CFR Part 5 that prohibited the National Park Service from charging location fees for commercial filming. For some reason, the scope expanded far beyond this objective, delaying the legislative process and leading to language more complex than was needed, without really providing any additional benefit. Despite the many permutations in the wording of the various bills, the resulting statute was reasonably short and simple; it could have been quickly and easily implemented by incorporating the essence of former 36 CFR 5.5 on which the statute was modeled, with a few minor modifications. But the regulations eventually issued by the FS and the DOI agencies went far beyond what was needed to implement the statute, again providing little benefit over previous regulations. The simple regulation at 36 CFR 5.5 and similar policy for still photography in the Forest Service Manual at 2725.51 were replaced by regulations, directives, and other policies that are lengthy, convoluted, and in some cases ambiguous. Some common terms are redefined in a manner so novel that it is difficult to believe they represent what Congress intended. And the possibility that permits may be required for press coverage of anything other than breaking news would seem to infringe the freedom of the press.

Conclusion

Changing a regulation entails considerable effort, so it preferably is done infrequently. But here a change seems unavoidable if freedom of the press is to be ensured. The additional issues discussed above could also be addressed with reasonable additional effort. Given the threshold effort required for even a minor change, it would seem far more sensible to address all of the issues at once rather than to deal with each one separately.

__________________________________

In addition, NPPA sent a letter to the Chief of the U.S. Forest Service and NANPA has issued a statement on the matter. You may submit a formal comment on the proposal by December 3, 2014 (on the right hand side of the webpage, click Submit a Formal Comment). Gabby Salazar, NANPA’s President has suggested that you include in your comment, in your own words, points such as these (and to encourage other nature photographers to do the same):

I am a nature photographer, a member of NANPA, and a patron of our nation’s public lands, including USFS wilderness areas. The policies as proposed are overly vague and ambiguous and should be clarified as follows:

1. No permit or fee should be required to photograph in areas where the public in general is allowed.
2. No permit or fee should be required for photographers who use cameras on a speculative basis to photograph or film without an immediate market outlet for their work. Such activities are not a “commercial use or activity.”
3. No permit or fee should be required for news-gathering in general or for journalists on assignment for editorial purposes. 
4. Permits and/or fees may be required when the photography or filming involves product or service advertisements, the use of models, actors, sets, or props, damage to resources, unacceptable health or safety risks, or significant disruption of normal visitor uses.
5. Overly vague and subjective policy criteria such as those found in 45.1c(5)(a), (b) and (c) should be eliminated from the proposed policies.

Thanks to Jeff, NANPA, and NPPA. Let’s all work together to protect photographers’ rights!

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Complete Victory for Daniel Moore!

After eight years, Daniel Moore has a total win in his battle to use the University of Alabama’s trademarks in his artwork!   See my March 19, 2010 and November 3, 2009 blog entries for more information.  The website, AL.com, has the details of the court’s September 27, 2013 ruling.

Thanks to Steve Sasser for submitting this topic!

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NPS Rangers Still Hassling Photographers

Caribou Rack - Copyright Carolyn E. Wright

As far back as 2005, we have been reporting here about photographers being falsely told that they need a permit to take photographs in National Parks and on federal lands. In 2008, NANPA shared its attempts to clarify the laws on this. Unfortunately, the problem still remains.

Specifically, professional photographer, D. Robert Franz, reported on his negative experience this month:

My friend and I just returned from Devils Tower National Monument where we were nearly ticketed by a ranger for photographing without a permit.  At the time we were photographing prairie dogs from a road pull off where thousands of people photograph the prairie dogs every year. The ranger asked if I sell my photos to which I answered truthfully that I did. At that point he said I was in violation of the law and needed my ID and business name.  I told the ranger I was very aware of when a permit was required for still photography on public lands (even if the image may be sold) and that he was wrong.  He sure didn’t like that.  I’ve never seen a ranger more angry or threatening.  We then requested a visit to the superintendent but he was out of town.  We then asked to see the chief ranger and when he arrived the discussion continued.  I asked 3 times to see the regulations but they never showed them to us.  We saw them looking through the regs and then tear up the tickets.  But were told that we could do no more photography until the matter was resolved.  Basically we were told to leave.  I usually carry a copy of the law for these situations but had them in a different bag that I left home…

I [later] received a call from the chief ranger of D. T. He admitted I was correct and apologized for his rangers behavior and for his lack of understanding of the law. I thanked him but told him I would be following up on this situation with letters to his superiors, government officials and politicians. I will need a written apology from the initiating ranger and confirmation from the park superintendent that I was correct and acted in accordance of the law. The CR understood why I would pursue this further and had no ill will towards me. Reading between the lines it sounded as though his ranger received a sharp reprimand.

As the National Park Service’s regulations explain, still photographers only need a permit when:

1.      the activity takes place at location(s) where or when members of the public are generally not allowed; or

2.      the activity uses model(s), sets(s), or prop(s) that are not a part of the location’s natural or cultural resources or administrative facilities; or

3.      Park would incur additional administrative costs to monitor the activity.

So Robert’s taking photos of prairie dogs wouldn’t require a permit. It’s unfortunate that photographers must continue to fight for their rights. But kudos to Robert for knowing the law better than the rangers!

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Legal Insights on Photographers’ Rights

Check this great seminar on Photographer’s Rights (sponsored and presented by the NorCal Chapter of the American Society of Media Photographers (ASMP) and Region 10 of the National Press Photographers Association (NPPA)).

Join NPPA General Council, Mickey Osterreicher, and ASMP NorCal Chapter Chair, Nicolò Sertorio, for a discussion on photographers’ rights, including Rights of Access, Copyright and Fair Use, and Social Media Terms of Use.  

For further information, check the ASMP website.

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Update on the Attempt to Make Aerial Photos of Homes Illegal in New Hampshire

Aerial Power Lines - Copyright Carolyn E. Wright

Bill Hemmel has provided an update to the previous blog entry on the attempt to make aerial photos of homes illegal in New Hampshire.  He attended the hearing on the bill and reports as follows:

NH House Bill 619-FN – “AN ACT prohibiting images of a person’s residence to be taken from the air”

The NH House Criminal Justice and Public Safety committee held a hearing on this bill [on] 2/19/2013. Besides the author of this bill (Rep Neal Kurt, R-Hillsboro) and the committee, there were quite a few others in attendance, some surprising. They included the United States Army, NH DOT (Bureau of Aeronautics), the ACLU, and NH State Police, along with paid lobbyists for the NH Broadcasters Association and Apple Computer. A lobbyist from TechAmerica – representing many major hitters in the drone industry – was also there, along with myself and the owner CR Helicopter in Nashua.

The original bill was never submitted to the committee. (My guess is that Rep Kurt received so much flak prior to the hearing, he re-thought his position.)

30 minutes before the hearing started, he presented a revised amendment that deleted all references to anything other than drones. In his opening remarks, he admitted that the bill was conceived after he saw a $300 drone toy – with video – for sale in a mall this past Christmas.

While providing exceptions for law enforcement, the bill now makes it a FELONY for an individual to use a drone for “surveillance”. Surveillance, as defined in his new bill, would include photographing the inside of a building (huh?), or a “recognizable” image of a persons face. (Thus your 12 year old, flying a toy over
the neighbors pool and recording video, would technically be a felon if convicted.)

The bill also prohibits the use of drones carrying weapons or “lazer rays” (honest!), and specifies that they cannot be used to hunt game. First to testify was a Brigadier General from the US Army. He began by firmly reminding the committee that the airspace above New Hampshire was not owned by New Hampshire, but by the United States of America, and therefore controlled by the FAA. One of the committee members challenged him as to where that authority came from. The General was kind enough to quote chapter and verse. There were no more questions.

The only participants to speak in favor of the new bill were the NH Dept of Safety and the ACLU. All others spoke against it.

At the time of recess, a vote had not been taken. A post-session conversation with one of the committee members leads me to believe that the bill will not be included in this years legislation, but may be held for review again next year.

This new version of the amendment is [now] available online at http://www.gencourt.state.nh.us/legislation/amendments/2013-0448H.html

The New Hampshire branch of the ACLU supports the new bill (see http://nhclu.org/hb-619/).

The Concord Monitor newspaper has reported on the latest status of the bill (look for “Drones be gone” towards the middle of the page at http://www.concordmonitor.com/home/4869803-95/state-bill-budget-committee.

Thanks to Bill Hemmel for these updates!

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Tomorrow Morning: Press Conference on Major Legal Action concerning Suffolk County Police Department

FOR IMMEDIATE RELEASE

 April 9, 2012 — Tomorrow at 9:45 a.m. in Central Islip, the New York Civil Liberties Union, the law firm of Davis Wright Tremaine, LLP, and the National Press Photographers Association will hold a media availability to announce a legal action regarding Suffolk County’s policy and practice of obstructing the First Amendment right of the press and the public to record and gather the news about police activity in public places.

The legal action concerns a July 2011 incident in which professional video journalist Philip Datz was unlawfully arrested and detained by Suffolk County police while filming police activity on a public street in Bohemia, NY.

Mr. Datz, Attorney Robert Balin, a partner with Davis Wright Tremaine, and NYCLU Suffolk County Chapter Director Amol Sinha will be available for interviews tomorrow starting at 9:45 a.m. at the NYCLU Suffolk County Chapter’s office, which is located at Touro Law Public Advocacy center, 225 Eastview Drive in Central Islip. Mickey Osterreicher, NPPA General Counsel will be available by telephone 716.983.7800.

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Start the Year Right!

Happy New Year!  Start the year right!

Register your copyrights:  How to Register Your Copyrights Using the eCO System

Learn about your rights:  Read the “Photographer’s Legal Guide” and this blog

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Get your contracts and forms in order: Customizable forms created by the Photo Attorney® specifically for photographers

Unsolicited review:  “Thanks so much for making these available! I especially appreciate that they’re short and to the point — I hate forms that are excessively long and I find that people are very leery about signing them, too.  Yours are clear and yet cover what needs to be covered. And the price is negligible — I would have expected to pay much more.” Scott Hargis of Scott Hargis Photography

Defend your copyrights: Using the Copyright Infringement Cease & Desist/Demand Letter form

Unsolicited review:  “Just a note to tell you that I’ve used your forms for copyright enforcement. The “Demand” letter has been very useful and has helped collect revenue.”  Leif Skoogfors

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