Photo Attorney

Notice: Photo Attorney Under Construction!

2009-09-12T13:54:00.000-07:00

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We may be off-line for a few days. Note that you'll need to update your RSS feeds.
Thank you for your patience while we make changes and improvements to photoattorney.com.

Rights Grabs from Infinity and Beyond!

2009-09-08T19:41:00.000-07:00

Here are more rights grabs that are out of this world!

**If you enter your print in the 2009 Chicago Zoological Society Photo Contest, then you give the Society your copyright, too! The rules state:

"Submission of any entry further constitutes the entrant's consent to irrevocably assign and transfer to the Sponsor any and all rights, title and interest in the entry including, without limitation, all copyrights and moral rights."

**After entering the The Digital Photo Perfect Portraits Photo Contest, you agree that:

USE OF ENTRY: By submitting an entry, entrant grants Sponsors and their designees an irrevocable, royalty-free, non-exclusive, worldwide perpetual license to use the entry and his/her name, city and state of residence for credit purposes in Sponsors' online galleries, without further compensation, notification or permission, unless prohibited by law. In addition, each winner grants to the Sponsors and their designees an irrevocable, royalty-free, non-exclusive, worldwide perpetual license to use and distribute the entry [(as submitted, or as cropped by Sponsors)], and his/her name, city and state of residence for credit purposes, in any and all media now or hereafter known, including without limitation in Digital Photo magazine, for purposes of promotion of this Contest and other Sponsor's contests and/or for purposes of advertising and promoting Sponsors and, except as otherwise stated herein, without further compensation, notification or permission, unless prohibited by law.

**When you submit your weather video to weather.com:

[Y]ou hereby grant [The Weather Channel Interactive, Inc.] the non-exclusive royalty-free irrevocable rights, in its sole discretion, to use, reproduce, copy, publish, display, distribute, perform, translate, sublicense, adapt, modify, create derivative works from and otherwise exploit the video(s) (in whole or in part) and to incorporate the video(s) in other works, in any and all markets and media, whether now known or hereafter developed, throughout the universe [ed. note: not just the Earth, but Mars, too?] in perpetuity . . . .

You also agree that the Weather Channel "[will not] be obligated to prevent, or have any liability for, any unauthorized copying, publishing, displaying or other exploitation of the video(s)."

**Submit your photos to CuteOverLoad.com and you agree:

3. VISITOR'S SUBMISSION OF WORKS

3.1 In consideration for your Works appearing on the Website, you grant the Company a perpetual royalty free non-exclusive license to use, reproduce, modify, translate, transmit, distribute and sub-license any Works you supply or communicate to the Website in any medium, now in existence or hereafter developed, for any purposes, including commercial use.

**When entering The Nature Conservancy 2009 Photo 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." That's not as bad as the others, but it means that the Conservancy can use your photo for anything.

Thanks to Ron, Jennifer Geck, John Williams, Michael Gordon, and Jim Frazier for submitting these alerts.

"Moral Panics and the Copyright Wars" by William Patry

2009-09-07T08:41:00.000-07:00

Those of you interested in analyzing the effect of copyright law and modern copyright debates should pick up a copy of William Patry's new book, "Moral Panics and the Copyright Wars." Ray Dowd has a thorough review of the book on his Copyright Litigation Blog.

Flickr Changes Its DMCA TakeDown Policy for Copyright Infringement Claims

2009-09-06T06:42:00.000-07:00

As explained in my article on "Using the DMCA Takedown Notice to Battle Copyright Infringement," the Digital Millennium Copyright Act (DMCA) states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users' websites that appear to constitute copyright infringement after it receives proper notice. But some uses of copyrighted works may be a "fair use," not an infringement (read more about fair use in my article). While only a court of law can make that decision, some uses appear more likely to be allowed by law.

Such was the case with a photograph of President Obama. As The New York Times reported, the controvery started with an image created by Firas Alkhateeb, showing President Obama wearing the makeup of the Joker. The underlying photo came from TIME magazine's cover. After Alkhateeb uploaded his photo to Flickr, an unknown third party added the word of "socialism" at the bottom of the image.

After it received a DMCA takedown notice, Flickr took the image down. But the notice likely did not come from the copyright owner or the owner's agent, as required by DMCA. Thomas Hawk reported on his investigation into the purported author of the notice.

After all of this, Flickr has made a change to its DMCA policy, reportedly from a suggestion by a Flickr user. A Flickr staff member explained the change:

Upon receipt of a complete NOI [notice of infringement], the US Copyright Team will replace the image with a new static image that bears the following copy:

"This image has been removed due to a claim of copyright infringement."

Flickr will send a message to the member about the claim, remove the questionable image, but leave the metadata and comments posted.

This seems to be an excellent compromise to a serious problem. Congrats, Flickr, for adapting your policies to accomodate the current state of things.

Free Copyright Seminar in Brighton, U.K., Sept. 30

2009-09-05T15:20:00.000-07:00

CopyrightAction has posted an announcement from copyright lawyer, photographer and CopyrightAction member, Scott Gair. Scott is a solicitor (lawyer) at Mayo Wynne Baxter.

Mayo Wynne Baxter is hosting a free Copyright Law Seminar at the Brighton Media Centre (Friese-Greene House, 15-17 Middle Street, Brighton BN1 1AL) from 5:30pm till 7:30pm on Wednesday, September 30, 2009. Spaces at this event are limited, so contact Scott Gair at sgair@mayowynnebaxter.co.uk or call 01273 223258 to secure your place.

Take the Test!

2009-09-01T07:36:00.001-07:00

How much do you know about copyright law? Check your knowledge on Bryan Cave's Art Law blog.

Note that there is an exception for Myth 9. Check 17 USC 120 of the Copyright Act:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

The more you know, the better you can protect your work!

Planned eCO Service Outage

2009-08-31T14:19:00.001-07:00

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.

Quicklinks - Lessons To Be Learned

2009-08-24T15:26:00.000-07:00

*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.

Photographer Awarded $1,000 for Unauthorized Use of Photo

2009-08-16T08:03:00.000-07:00

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!

Copyright News

2009-08-10T19:57:00.000-07:00

* 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.

Photography Not Allowed - 32

2009-08-09T14:07:00.000-07:00

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.

Photographs of Copyrighted Works

2009-08-01T15:10:00.000-07:00

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!

Quicklinks from Around the World

2009-07-28T22:22:00.000-07:00

Mannie Garcia has filed his Answer, Counterclaims, and Cross Claims in the Fairey-AP lawsuit.

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.

The User Agreement for AnnArbor.com provides that:

. . . [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.

If you enter the PopPhoto Best of Reader Gallery Contest, you agree:

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.

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

2009-07-22T18:09:00.000-07:00

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. § 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.

UK Woman Detained for Filming Police Officers

2009-07-21T13:41:00.000-07:00

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.

Identifying Website Owners for Copyright Infringement Claims

2009-07-20T18:57:00.000-07:00

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.

Quick Links, Rights Grabs, and Updates

2009-07-17T12:03:00.000-07:00

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.

Update on Daniel Moore's Lawsuit

2009-07-14T19:30:00.000-07:00

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

2009-07-14T08:04:00.000-07:00

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.

Protecting What's Yours

2009-07-13T16:49:00.001-07:00

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

The Power of Linking

2009-07-11T16:03:00.000-07:00

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

2009-07-11T07:08:00.000-07:00

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.

Copyright Office Increases Most Fees

2009-07-09T08:30:00.000-07:00

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.

Andy Warhol's Derivative Works Blue

2009-07-08T10:43:00.000-07:00

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

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

2009-07-06T08:30:00.000-07:00

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.