Don’t Sit On Your Copyright Infringement Claim!

When someone infringes your copyright, you have a limited time to make your claim. This is based on a legal principle called “statute of limitations.” Statutes of limitation, in general, are laws that prescribe the time limit to file lawsuits. The deadlines vary by the type of claim and maybe by the state where you live. 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 time.

Because copyrights are governed by federal law, there is only one statute of limitations for claims related to them. Copyright infringement claims have a three-year statute of limitations from the “last act” of the infringement. What constitutes the last act can vary. For example, if your image is published in a newspaper without your permission, you have three years from the date that the newspaper was distributed to file your claim in court. But if the infringement is continuing, such as when someone is using your image on the web without your consent, then the courts disagree whether the limitation period begins to run on a continuing wrong till the wrong is over and done with. It sometimes starts when you have “constructive” notice of the infringement, even if you don’t have actual knowledge of it.

Determining when a statute has started to run can get a bit tricky. If someone uses your photo without your permission, don’t sit on your claim. Note, however, to pursue any copyright infringement claims in court, you must first register your copyright with the U.S. Copyright Office.

Take my advice; get professional help.
PhotoAttorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share

Protecting and Prosecuting Your Copyrights

When your image is used without your permission, your copyright is infringed. You have several options at this point.

You always have the option of doing nothing. You may not care that the non-profit wolf society is using one of your wolf images. You may only want the society to give you proper credit. If so, write the society a letter officially giving it the right to use the image (be sure to designate the parameters of that use), but insist that you get a photo credit with a copyright notice. Also ask the society to add your website name. You may get additional work from the society or others.

Your most aggressive option is to pursue your legal remedies by filing suit. Remember, your copyright must have been registered with the Copyright Office. To file suit, get an attorney to help you because the legal procedures are complicated.

Usually, your most profitable and easiest road is the middle one. Since you have your proof of registration, you need only to contact the infringer to put him on notice. If the infringer is a business-savvy person, he will know that he’s in trouble. If he doesn’t understand the trouble he’s in, he will as soon as he talks with his attorney. He will want to avoid the legal fees that will be imposed both by his and your attorney. So make your demand for statutory damages by letter and you will get your just rewards much more quickly.

The weight of your demand letter is dramatically increased if it comes from an attorney. The infringer will recognize that you mean business and are prepared to go forward with suit if the infringer doesn’t respond appropriately.

Protecting and prosecuting your copyrights goes hand in hand. To best protect your rights, what you do after your copyright is infringed is as important as what you do beforehand.

Take my advice; get professional help.
PhotoAttorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share

Copyrights Here, There and Everywhere

You take a picture of a city street. Look closely and you’ll see copyrighted material everywhere in your photo. The obvious copyrights are on the billboard, the newspaper stand and products in the store window. The less obvious copyrights are in the sculptural ornamentation of the lamppost, the patterned fabric of a woman’s skirt and the toy the kid is holding. You will never be able to track down all of these copyright owners to get their permission to use the photo. Are you out of luck if you want to use it? Maybe not.

While copyright law can be restrictive on photography, it is not irrational. Copyright law includes the doctrine of “fair use” that allows unauthorized use of copyrights in certain circumstances. The courts recognize that free expression and avoiding law suits over minor issues are more important than protecting intellectual property rights.

The doctrine of fair use means that copying will not infringe a copyright when it is “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.” Four factors are considered to determine whether the use qualifies under the doctrine:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used; and
The effect of the use upon the potential market for or value of the copyrighted work.

So if the copyrighted material that appears in your photo is covered by these four categories, you do not have to be concerned with getting permission to use it. On the other hand, it’s a judgment call. Would a court agree with your position? It may be costly to find out. The next best alternative is to get a copyright lawyer’s advice. The lawyer can give you an opinion based on research and experience. But the safest and sure way to use a copyrighted work in a photograph is to get permission in writing from the copyright owner.

Take my advice; get professional help.
PhotoAttorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share

Practical vs. Legal

Depending on the circumstance, a model or property release may not be legally necessary. But getting one never hurts and it may help. It may make some people think that they can’t sue you (they can, even if their cause of action is bogus). If they do sue you, having a release may shorten the litigation and it could help you win. Even when you win, though, your defense fees can be costly.

In those situations when a release is not required, other legal issues may be presented when photographing a person, an animal or other property. These include trespassing, trademark, false light or invasion of privacy. All of this can get confusing. That’s also why it’s dangerous to take anecdotal advice.

For example, if one person has a fashion shoot in a national park and needs a permit, it does not mean that all professional photographers who shoot in a national park need a permit. While some stock agencies may require a property release for an animal photo, it does not mean that it’s legally required. It means that they are being cautious in this litigious society.

I recently photographed some huskies at a public park. I wasn’t trespassing on public property, the dogs are not trademarked and I did not misrepresent them (also known as “false light”) in my photos. Further, since animals don’t have privacy rights like humans do, I did not need to get a model or property release from their owner. But I got one anyway. I asked the owner in writing for permission to use the photos. I did that that only to keep the owner from getting upset and to avoid any hassle with a stock or advertising agency.

What is often practical is not always legally required. To figure out the differences and to make the best decisions about what to do, talk to an attorney to discuss your particular situations.

Take my advice; get professional help.
PhotoAttorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share

Better Late Than Never – Register Your Published Photographs

There’s no doubt that it’s easier to register your photographs before you publish them. But if you didn’t get it done then, it’s better late than never to register your published images. The good news is that it’s more convenient and cheaper than ever to register your photographs after they have been published.

Pursuant to a recent change in copyright law, you now can register a group of published images on one form. The only requirements are that the photos must have been published in the same year, made by the same photographer and have the same copyright claimant. This should fit the profile of most photographers and their work.

Specific instructions on how to prepare your registration forms for published photographs are available from the Picture Archive Council of America at http://www.pacaoffice.org/copyright.html in “The Importance of Copyright Registration”

You no longer have an excuse. Go to the dentist, change the oil in your car, and register your images, both unpublished and published. It’s better late than never.

Take my advice; get professional help.
PhotoAttorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share

Know Your Rights and Limitations When You Photograph Property

In general, if property is visible and can be photographed from a public place, you don’t need a property release to use the image in any manner. This exclusion to copyright law includes buildings located on the property, but not statues or other items that may have separate copyrights. There also are restrictions on some governmental property for security purposes, such as federal seals and insignia, and military or nuclear installations. But if the statue or copyrighted item has minimal presence in your image, your photo still may fall under the exclusion. Otherwise, you must get permission to use the image for commercial purposes.

Nevertheless, some companies have tried to prevent the use – both commercially and editorially – of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the lone Cypress tree at Pebble Beach, CA, and the “Hollywood” sign. While these attempts have been unsuccessful, they can be expensive to litigate. Is it worth it to you to spend thousands of dollars to test this issue? That’s a choice you’ll have to make.

On the other hand, photographers should protect their rights, too. Don’t be intimidated from photographing what is within your legal rights. Check with an attorney to fully understand and exercise your privileges.

Take my advice; get professional help.
PhotoAttorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share

Know Your Rights and Limitations When You Fly

The Transportation Security Administration’s (“TSA”) mission is to “protect [ ] the Nation’s transportation systems to ensure freedom of movement for people and commerce.” The TSA, not the airlines, determines what can pass through the secured area of an airport.

So it’s great that the TSA allows photographers an extra bag of “photographic equipment in addition to one (1) carry-on and one (1) personal item through the screening checkpoint. The additional bag must conform to your air carrier’s carry-on restrictions for size and weight.”

The catch is that your airline, not the TSA, has the right to disallow the third bag. While you can get it through security, you may be forced to check it at the gate. Since many photographers need two bags for photography equipment plus a briefcase for their laptops, you may not want to have to choose which bag is thrown below when the third bag is disallowed.

E-mail messages to Delta, Northwest, Alaska, United and American Airlines asking whether they allow the extra photography bag either were not returned or the responses quoted/referred to baggage guidelines from their websites that allow only two pieces of carry-on luggage. Even if any of the replies had been positive, the rules may be applied differently at the gate.

The safest plan is to go with two carry-on bags, at least for now.

Take my advice; get professional help.
PhotoAttorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share

Rights of Publicity For All

In general, you may photograph people when they are in public. The use of those photographs, however, can be restricted due to certain privacy rights. Privacy rights are recognized in most states, but are different for each one. Since it’s tricky to know what you can do, the safest approach to follow is the most restrictive one.

One right of privacy – also known as the right of publicity – is the commercial appropriation of someone’s name or likeness. It happens when the name or likeness of someone is used without consent to gain some commercial benefit, such as when a photograph of a person is used in an advertisement without the person’s permission. That is why model releases are so important. It is evidence that you have the person’s permission to use his image for certain purposes.

So what do you do when you travel to foreign countries to photograph the people there? Do you need a model release? What if the people don’t speak English?

Nevada Wier has published thousands of travel photographs from all over the world. Her advice in her book, Adventure Travel Photography, is:

If you plan to use your photographs for publication or stock, I think it is wise to have signed model releases from any people you photograph in a foreign city, no matter what their nationality or what the shooting situation is. (Even though lawsuits aren’t currently common in the rest of the world, this might change.) Translate your release forms into the language of the country you’ll be traveling and photographing in. In more remote regions it is a bit trickier to get signed model releases, and not always appropriate. People may be suspicious, confused or frightened if they’re asked to sign a piece of paper. Use your common sense.

I couldn’t have said it better.

Take my advice; get professional help.
Photo Attorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share

Don’t Kill The Messenger

The U.S. Supreme Court is considering whether software companies can be liable for their products that enable illegal sharing of music and video files. The case of M.G.M. v. Grokster has the attention of major and diverse players. Over 55 amicus briefs – statements by those who are not directly involved in the case – have been submitted to the Court for consideration. These include the NFL, the NBA, the Christian Coalition, Senators Leahy and Hatch, and two photography groups – the PPA and the ASMP, which specifically note that the “illegal file-sharing poses particularly significant risks for publication photographers and other small copyright owners whose livelihoods depend to a substantial degree upon commercial exploitation of their creative works.” Some of the materials can be viewed here: http://news.findlaw.com/legalnews/lit/mpaa/index.html

The issue is not whether file sharing of copyrighted materials is illegal – it is. The issue is whether a manufacturer can sell a device that allows customers to commit copyright infringement. It is based on the legal theory of secondary liability. Computers or the internet likewise could be considered devices that enable someone to steal others’ work. But since those items also can be used for legal activity, the benefit of doubt goes in their favor. On the contrary, anyone caught with items that have no legal use – such as burglar’s tools that can be used only to break into a house – can be prosecuted without more.

The individuals who use Grokster’s service to illegally download music will not get the same benefit of doubt. They commit the infringement and are subject to civil and criminal prosecution. Case closed.

How can we stop the infringement? Even if the Supreme Court outlaws Grokster’s software, infringing activities won’t stop. We must find other ways to at least minimize it. There are things we can do.

First, we can educate the infringers. Some people don’t realize that sharing files of copyrighted work is illegal. The recording industry increased its public awareness program and found a significant rise in the percentage of persons aware that it is illegal to make copyrighted music available online for others to download. When some people know that an activity is illegal, they don’t do it. Second, we can develop and use technology and other features that make it difficult for others to steal our work. Some thieves are lazy and won’t steal anything that takes effort. Third, we can make it easier for potential infringers to purchase the product they want. The recording industry has learned that consumers will purchase one song when they don’t want to buy the entire album. Last, we can sue those who steal the work so that they and others learn that the theft will not be tolerated. Going to jail or paying a fine is a deterrent.

So don’t blame the messenger. Change the message. Follow the course of our fellow recording artists and protect your work.

Take my advice; get professional help.
Photo Attorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share

Preventative Law

We might do things a little differently if we could do them again. We sometimes say, “I shoulda; I coulda.” It’s tough to anticipate what we should do at times to prevent misfortunes.

But I’m going to do some fortune telling now. If you put your images on the web or give copies to others, at least one image will be used in a way that you have not authorized. Bet on it. Your copyright will be infringed.

When that happens, you may be surprised and angry. But will you have at your disposal the ability to do something about it?

You will IF you register your images with the US Copyright Office. The ONLY way that you can sue an infringer is if you have registered. And if you register your copyright BEFORE the infringement occurs, you have many more rights and remedies against the infringer.

So don’t delay. Practice “preventative law.” Don’t wait until it’s too late to fully protect your copyrights. Register your images NOW.

Take my advice; get professional help.
PhotoAttorney

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
Share
1 99 100 101 102 103