Photo Attorney

A Proposal to Address the Potential Demise of Newspapers

2009-07-03T07:55:00.000-07:00

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

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

What the Duck - 745

2009-07-02T08:06:00.000-07:00

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

The Response of Infringers

2009-06-29T17:40:00.001-07:00

People who receive notice of copyright infringement respond in different ways. Some are apologetic, others are belligerent, and the rest fall in-between. Following are two responses that appear to be on the extreme end (ed. note - the photographers are not clients).

1. www.nomoporker.blogspot.com (click to enlarge):

Check the comments, too.

Thanks to Ken Shelton (the photographer who defended his rights) for submitting this.

2. E_B_A reports on emails he received from a guy who copied his images without permission and who demanded that E_B_A put them back.

Sadly amazing.

Copyright and/or Trade Dress Infringement of Website?

2009-06-27T08:54:00.001-07:00

Wired.com reports on the similarity between Kayak's and Bing's websites. Rebecca Tushnet notes on her 43(B)log that Kayak might have copyright and/or trade dress infringement claims against Bing.

If you design your website and someone copies it, check with your attorney to see if you have a copyright and/or trade dress infringement claim.

PhotoLegal Podcast - US Special (Now with Fixed Audio)

2009-06-26T17:43:00.000-07:00

Check out the latest edition of the PhotoLegal Podcast. I join Darren Hector, James Barisic, and Phill Price to compare U.S. copyright and other laws that affect photographers with those across the pond.

The Not-So-Fine Print

2009-06-25T20:10:00.000-07:00

Here are some more terms and conditions that need close review (and some are alarming!):

Share the Experience Photo Contest - The Rules states that:

Submission of an entry in this Contest constitutes entrant's irrevocable assignment, conveyance, and transference to Sponsors of all right, title, and interest in the entry, including, without limitation, all copyrights.

Alliance of Actions Sports - The User Content Submission Agreement provides:

In connection with all User Content you submit using the User Content Submission Features, you grant to ALLI, and the Affiliates, the unqualified, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Content on the Site and any other channels, services, and other distribution platforms, whether currently existing or existing or developed in the future, of ALLI, and the Affiliates (collectively, the "Platforms"), for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to ALLI, and the Affiliates, in our sole discretion.

Nature Conservancy Digital Photo Contest:

By entering the 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, and (ii) the right to use your name, city, state and country of residence in promotions and other publications.

City of Toronto Photo Contest - The Rules state:

By entering the contest, you agree to have any of your winning photos and photos that receive honourable mention displayed at City locations and used in City of Toronto print and electronic communication materials, advertising and promotional materials and on the City's website, for any purpose and at any time in the future, without any fee or other form of compensation.

Art Wolfe's Photo Contest:

By entering the contest, entrants grant Art Wolfe, Inc a royalty-free, world-wide, perpetual, non-exclusive license to display, distribute, reproduce, and create derivative works of the entries, in whole or in part, in any media now existing or subsequently developed, for any purpose, excluding resale. Any photograph reproduced will include a photographer credit. Art Wolfe, Inc. will not be required to pay any additional consideration or seek any additional approval in connection with such uses.

The rules apparently have been revoked. Of course, as a wonderful professional photographer, we're sure that Art doesn't need our photos for any purpose other than the contest!

Thanks to Bill Boswell, Thomas Di Nardo, Arcady Genkin, and Annie Libby for submitting these alerts.

News and Information on the Google Book Settlement

2009-06-24T08:27:00.000-07:00

Many photographers are also authors. If you published a book before January 5, 2009, your work may be subject to a class action lawsuit brought by authors and publishers, claiming that Google has violated their copyrights by scanning their books, creating an electronic database, and displaying short excerpts without the permission of the copyright holders. As a member of the class, your rights may be effected unless you take action.

As the Cornell Legal Information Institute explains, a class action "is a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group. The class members [are those] who have suffered the same wrong at the hands of the defendant but who are too numerous for the court to adequately manage the lawsuit if each class member were required to be joined as named plaintiffs." If you meet the definition of the class, then you are part of the class, even if you didn't take steps to join the class. Instead, you must "opt out" of the class if you don't want to take part.

The class action lawsuit is entitled The Authors Guild, Inc., et al. v. Google Inc., Case No. 05 CV 8136 (S.D.N.Y.) The Court has preliminarily approved a settlement. The details are available at www.googlebooksettlement.com.

Some important deadlines are coming up in the settlement:

Claim your Books and Inserts: You can do this at any time, but in order to be eligible for Cash Payments for Books, you must complete your Claim Form on or before January 5, 2010.
Opt out of the Settlement:Must be submitted online or postmarked on or before September 4, 2009.
File an objection or notice of intent to appear at the Fairness Hearing: Must be postmarked on or before September 4, 2009.

If you're part of the settlement class, review the materials and talk with your attorney about what action you should take. To help explain what's going on with the case, the Copyright Clearance Center has posted a series of interviews, seminars, and presentations featuring leading experts who are well versed on the settlement and its various components.

This is another one of those circumstances that you must act now or forever hold your peace!

Orphan Works Legislation Is Making Noises Again

2009-06-19T21:07:00.000-07:00

The Illustrators Partnership of America is reporting on its Orphan Works Blog that US Copyright Register Marybeth Peters told Intellectual Property Watch that the orphan works legislation is expected to be introduced within the next 10 days.

Like we don't have bigger problems. Stay tuned.

Protecting Your Photography Business Assets

2009-06-18T13:07:00.000-07:00

Check the current issue of Digital Photo Pro for a great and important article by Samuel Lewis, attorney and photographer, about insuring your photography business assets.

For insurance companies who specialize in coverage for photographers, check Tom C. Pickard & Co. (which carries my insurance policy), Hill & Usher, or through a photography organization such as NANPA (which now offers a health insurance policy) and ASMP.

Protecting Your Trademarks on Facebook

2009-06-15T11:38:00.000-07:00

Many photographers have a presence on Facebook for business purposes. As of Saturday, June 13th, you may choose a username for your Facebook account to more easily direct clients to your profile. So instead of your profile being www.facebook.com/profile.php?id=xxxxxxxxxxxx, your profile could be www.facebook.com/yourname.

To select your username, go to this Facebook link. To learn more about the Facebook usernames, visit the Facebook Help Center.

Further, if you have a registered trademark for your photography business, you definitely should consider acquiring the corresponding vanity URL (check the blog for more info) or making a filing with Facebook to prevent another party from acquiring a vanity URL with your trademark. The Facebook system only permits owners of registered trademarks to prevent another party from establishing a vanity URL with that registered trademark (so unregistered trademarks cannot be used for this purpose).

The 100th Anniversary of the 1909 Copyright Act Conference

2009-06-14T17:56:00.000-07:00

The High Tech Law Institute and the Berkeley Center for Law & Technology recently co-sponsored a symposium on the 100th Anniversary of the 1909 Copyright Act. Two dozen distinguished scholars and practitioners, including David Nimmer, Of Counsel, Irell & Manella; William Patry, Senior Counsel, Google; and Marybeth Peters , Register of Copyrights, U.S. Copyright Office discussed the strengths and weaknesses of the 1909 Act and its effect on U.S. and international copyright law.

Materials from the conference are now available online. Check out the videos from the day (iTunesU client necessary to access)(panels from the conference are items 17-25). See photos of the event (I'm barely visible in the audience shots). Read some of the papers provided by the speakers and see some media coverage about the event and more details about the event.

Sen. Orrin Hatch's Remarks at the World Copyright Summit

2009-06-12T08:11:00.000-07:00

CISAC, the International Confederation of Societies of Authors and Composers, recently held its second "The World Copyright Summit," on June 9 and 10 in Washington, D.C. "to provide a forum to exchange ideas, to debate diverse viewpoints and to discuss issues linked to intellectual property and creative content online." The Summit opened with an address by U.S. Senator Orrin G. Hatch regarding copyright and intellectual property issues, and the potential effects of legislation on right owners. Senator Hatch, Ranking Member of the U.S. Senate Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights, has a personal connection to the issue as he is also a platinum-level songwriter.

A copy of Sen. Hatch's remarks is available on IPwatchdog.com. Here are some of Hatch's comments of note, especially regarding his position on the Orphan Works Legislation:

. . . Appallingly, many believe that if they find it on the Internet then it must be free. I have heard some estimates cite no less than 80 percent of all Internet traffic comprises copyright-infringing files on peer-to-peer networks. . . .

. . . Currently, Congress is very active on a wide array of intellectual property bills. In between filling a Supreme Court vacancy, I am focused on updating our patent system, enacting legislation that expands the public performance right to include analog radio transmissions, passing orphan works legislation, and reauthorizing the Satellite Home Viewer Extension and Reauthorization Act. . . .

. . . I believe that artists should be compensated for their work. This is an issue of fairness and equity. . . .

. . . I also continue to be very active on passing orphan works legislation. Last year, the Senate unanimously passed bipartisan legislation to encourage the use of orphan works - works that may be protected by copyright but whose owners cannot be identified or located. Countless artistic creations - books, photos, paintings and music - around the country are effectively locked away and unavailable for the general public to enjoy because the owner of the copyright for the work is unknown.

. . . Unfortunately, it often isn't easy to identify or find these owners of copyrighted work. To make matters worse, many are discouraged or reluctant to use these works out of fear of being sued should the owner eventually step forward. . . .

. . . For years, I have been working with industry stakeholders and copyright experts, including Marybeth Peters, Register of Copyrights, to pass orphan works legislation. The bill seeks to unite users and copyright owners, and to ensure that copyright owners are compensated for the use of their works. I couldn't agree more with Register Peters when she said, "A solution to the orphan works problem is overdue and the pending legislation is both fair and responsible."

Some copyright owners, such as Hatch, may be more supportive of the Orphan Works legislation because of the compulsory licensing of the Copyright Act for nondramatic musical compositions, public broadcasting, retransmission by cable systems, subscription digital audio transmission, and nonsubscription digital audio transmission such as Internet radio. The royalties for those uses are set by law, so the only issue is collection. Photographers, on the other hand, set their own license fees, which is at risk with the orphan works legislation.

John Harrington also has posted interviews he conducted with Michael Heller, Robin Gibb, and Public Knowledge during the Summit. Unfortunately, as John noted, photographers, illustrators, and other visual artists were noticeably absent from the conference's speakers list and no photography organizations were present.

Quicklinks - Rights Grabs, No Photography Allowed, and Copyright Infringements

2009-06-10T08:33:00.000-07:00

Photography Not Allowed

The Seattle Times reports: A photographer who was frisked, handcuffed, and detained by police after she snapped photographs of power lines has settled a lawsuit she filed against the city for $8,000.

Article by Nigel Hanson, media lawyer at Foot Anstey (United Kingdom): "When does street photography trigger privacy rights?"

Rights Grabs

EPUK reports: Renowned photographer, Simon Norfolk, pulled out of a major National Trust photographic project in protest over rights-grabbing terms in photo competition.

Tel Aviv in Focus Photo Contest: "By submitting your photo, you are giving the Federation rights to reproduce and use your image in any way."

National Geographic Energizer Ultimate Photo Contest: "By entering a photo in this Contest, Entrant grants a nonexclusive, transferable, royalty-free, worldwide license Sponsor and Energizer to edit, adapt and publish such photo in connection with the Contest and promotion of the Contest, and Sponsor may use the photo in connection with the Contest and promotion of the Contest for advertising, marketing and promotional purposes in commerce and in any and all media now known or hereafter known throughout the world in perpetuity, without attribution, compensation, permission or further notification to the entrant, his/her successors or assigns, or any other entity, unless prohibited by law." Ed. note: It's good, however, that these terms limit the uses to those related to the Contest.

Peterman's Eye: "2. By posting or submitting content on or to the website (regardless of the form or medium), you are giving Peterman's Eye Publishing, and its affiliates, agents and third party contractors a nonexclusive, perpetual, irrevocable, worldwide, sub licensable, royalty-free license to use, store, display, publish, transmit, transfer, distribute, reproduce, rearrange, edit, modify, aggregate your content with other content, create derivative works of and publicly perform that content for any purpose on and through each of the services provided by Peterman's Eye and/or on other websites owned by Peterman's Eye Publishing or its affiliates or partners. This license shall apply to the distribution and the storage of your content in any form, medium, or technology now known or later developed."

Tagged.com: "Although Tagged does not claim ownership of content that its Member's may provide to Tagged, by providing content to Tagged, Members automatically grant, and represent and warrant that they have the right to grant, to Tagged a worldwide, irrevocable, perpetual, non-exclusive, and fully sublicenseable, license to use, copy, perform, display, and distribute said content."

Copyright Infringements-Violation of Right of Publicity

The Detroit News reports: Laszlo Regos alleges Wayne State University Press unlawfully copied his photographs for a recent book about Detroit's landmark Guardian Building.

Extraordinarymommy.com reports: A family photo was copied from the Internet and used for advertisement in Czechoslovakia.

Thanks to Cynthia Haselton, Mike Czupryn, Bryan Ghows, Chris Rabior, Steve Upperman, Damon D'Amato, Paulo Rodrigues, Aaron Wulf, and Michael Gordon, for submitting these topics.

Statutes of Limitation for Breach of Contracts

2009-06-05T08:45:00.000-07:00

Many photographers enter into contracts with clients where the photographer agrees to perform photography services in exchange for payment. But what happens when you don't get paid after you've rendered the services?

A client's failure to pay for services rendered pursuant to contract constitutes a "breach of contract." If you can't otherwise get your client to pay, then you may sue for the payment in state court in a breach of contract action. When the amount due is relatively small, it may be easiest and best to file suit in "small claims" or "magistrate" court. Some courts have minimum amounts to sue starting at $1,000 and all have maximums ranging up to about $15,000. Even if you're owed more than the maximum, you can forego the excess and seek the maximum allowed by the small claims court.

Since the economy has slowed, some clients don't have money now. So you may want to wait a bit to sue, hoping that the client gets money later (balancing the risk that the client will go out of business). But the time that you have to make your claim is limited. This is based on a legal principle called "the statute of limitations." Statutes of limitation, in general, are laws that prescribe the time limits during which you can file lawsuits. The deadlines vary with the type of claim and depend on the state where the claim is made. 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.

In the United States, the statute of limitations to sue for breach of a written contract ranges from 3-15 years. It usually is a bit shorter for an oral contract. As an alternative, you may want to sue for copyright infringement instead of breach of contract if the client has used your photos without payment. Copyright infringement has a 3 year statute of limitations. Check my January 16, 2006, May 26, 2005, and August 15, 2008 blogs for more information.

Whatever you do, be sure to take steps to protect your work and your business!

Rights Grabs Continue - Now Includes Kindle Blogs

2009-05-30T03:06:00.000-07:00

The rights grabs continue for these contests and even for publishing your blog through Amazon Kindle:

Costco Photo Contest: "10. Entrant confirms and promises that entry is original and does not infringe the intellectual property rights of any third party. By participating, entrant agrees that ownership of the entry and all intellectual property rights in the entry is assigned to Costco, and will do all things necessary to give effect to that assignment."

Boston.com-Share Your Travel Adventures: "By submitting your photo(s) to Boston.com, you agree that such photo(s) and the accompanying information will become the property of Boston.com and you grant Boston.com permission to publicly display and use the photographs in any form or media for any and all purposes."

Boston.com's Four Elements Photo Contest: "By submitting your photo to Boston.com, you agree that such photo and the accompanying information will become the property of Boston.com and you grant Boston.com, The Boston Globe, Boston Metro and their sublicensees permission to publicly display, reproduce and use the videos in any form or media for any and (all editorial and related promotional purposes) purposes."

Fodor's Show Us Your Maryland Photo Contest: "7. LICENSE AND WARRANTIES: By entering this contest, entrants grant to sponsor and its licensees and assigns, a royalty-free, non-exclusive, worldwide right to copy, crop, edit, publish, display, distribute, sublicense or otherwise use their photographs for the full term of copyright thereof, in connection with the publication or display of sponsor's travel-related content, in all languages and all media, whether now known or hereinafter devised, including without limitation on the Internet, on mobile platforms and/or devices and on the cover or in the interior of sponsor's travel guides, and in the advertising, publicity and promotion thereof. . . . Entrants understand and acknowledge that they will not have any right of approval over the use of the photographs and will not receive any compensation as a result of any use of the photographs by sponsor."

Nature Conservancy Annual Photo Contest Rules: "By entering the 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 . . . ."

Face of Smashbox Contest: "5(B) GRANTS/WAIVERS: By uploading a Submission, you irrevocably grant Sponsor and its affiliates, legal representatives, assigns, agents and licensees, the unconditional, unlimited and perpetual right and permission to reproduce, encode, store, copy, transmit, publish, post, broadcast, display, adapt, exhibit and/or otherwise use, reuse, or not use your Submission or any portion of your Submission. . . in this Promotion in any and all media without limitation, worldwide and throughout perpetuity, without additional compensation, notice to, or approval from you. . . . YOU REPRESENT, UNDERSTAND AND ACKNOWLEDGE THAT YOU WILL NOT BE PAID FOR OR RECEIVE ANY FORM OF COMPENSATION OR ROYALTY IN EXCHANGE FOR GRANTING SPONSOR THESE RIGHTS OR FOR ANY SUBSEQUENT USE OF SUCH SUBMISSION BY SPONSOR (OTHER THAN ANY PRIZE THAT MAY BE AWARDED TO A WINNER. You hereby waive all intellectual property rights, privacy/publicity rights or other legal or moral rights that might limit or preclude Sponsor’s use of your respective Submission and agree not to sue or assert any claim against Sponsor & Others arising out of or connected to the use of the Submission or your participation in this Promotion. ). (C) INDEMNIFICATION/RELEASE: You further agree to indemnify and hold Sponsor & Others harmless from any and all claims, damages, expenses, costs (including reasonable attorneys' fees) and liabilities (including settlements), brought or asserted by any third party against any of them due to or arising out of your Submission, or your conduct in creating a Submission or any portion thereof or other actions in connection with this Promotion, including but not limited to claims for trademark infringement, copyright infringement; work product, violation of an individual's right of publicity or right of privacy; or defamation. You further agree to release and hold harmless Sponsor & Others from any and all claims that any advertising subsequently produced, presented, and/or prepared by or on behalf of Sponsor infringes your rights with regard to the Submission or any portion thereof."

And for those of you who are thinking about posting your blog through Kindle, the Silicon Valley IP Licensing Law Blog and Edward Champion's Reluctant Habits blog report on the terms to which you must agree to distribute your blog through Kindle. You may want to check their posts before checking the Amazon "Agreement to Terms" box.

Thanks to Thomas Di Nardo, Mary Ann Melton, Dave Murphy, and Karman Lee for submitting these alerts.

Copyright Office Responds to Washington Post Article

2009-05-30T02:48:00.000-07:00

The Copyright Office has issued a notice in response to the recent report of long processing times for registrations:

A recent Washington Post article focused on the lengthy processing times the Copyright Office is experiencing in wake of its transition from a paper-based to an electronic processing environment. The Copyright Office is working diligently to improve processing times and service to the public in general. To clarify, current processing times by filing method are as follows:

E-Service with Electronic Deposit: 5 months for 90% to be completed; 33% completed in 2.5 months
E-Service with Physical Deposit: 6.5 months for 90% to be completed; 33% completed in 3 months
Paper Claims: 18 months for 90% to be completed; 33% completed in 12 months
You can save money and time and help us improve our services by filing claims online via eCO. Please visit www.copyright.gov for more information.

Hooray! Keep up the good work!

Help! I've Been Infringed!

2009-05-29T05:54:00.000-07:00

You're sitting in your easy chair and surfing the web. You're not paying much attention, until you see it. It's your photo, but you did not post it there. You can't believe they used your photo without your permission. Now what do you do? The steps you take may limit your ultimate remedies so be sure to first understand what your options are.

Make Copies of the Infringement
If you think that the use is likely an infringement, make copies of it - both in electronic and print forms. Once the infringer realizes that she is caught, she will do what she can to get rid of the evidence of the infringement. You may need that evidence later.

If the infringement is in print, then take a photograph of it, scan it, photocopy it, and/or show it to another person who would be willing to testify about it. If the infringement is on the Internet and/or in electronic form, make a paper print of it and/or copy a screen capture of it; both are better! (Snagit by TechSmith is a great program to copy web pages.) Determine whether your copyright management information (CMI) is included in or has been removed from the infringing use. Read more about why and how to include your CMI in your photos in one of my blog entries here and here.

Make Sure That the Use Is an Infringement
Not all uses of your photographs are infringements. Do you use a licensing agency that may have authorized the use? Could the user be related to an entity to which you authorized the use? Is the use a fair use? While only a court can ultimately decide what fair use is, the law gives us guidelines as to what may qualify. Read more about fair use in my blog entry here.

Research the Infringer
Next, find out what you can about the infringer. Research the infringer's website to find his name and contact information. If the infringer is a corporation based in the United States, you can find information about it on the website of the Secretary of State for the state where the infringer is based. To find the Secretary of State's website using an Internet search engine such as Google, search the corporation's state's name (such as "Georgia") and the words "secretary of state." The extension of the URL will be ".gov" or ".us." Be careful - some sites attempt to appear to be the state's website so that they can charge you for the information. Once on the proper Secretary of State's website, look for "corporations search," "business search" or similar language. You then will find the company's registered or resident agent, officers, and/or official address.

You also may be able to find a contact name by searching the website's "who is" information. You first do a "whois" search on the website name. Several websites provide free "whois" services, such as http://www.whois.net/. Conduct an Internet search to find them. After you enter the website name there, you may be able to find contact information for the administrator of the website.

Option #1 - Do Nothing
Now that you've documented the infringement and have some information about the infringer, you always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it's not worth your time and effort to fight the infringement.

Option # 2 - Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use, such as who, what, why, when and where - see my blog entry here for more information. Include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website. You may get subsequent work from the infringer or others.

Option #3 - Prepare a DMCA Take-Down Notice
Purusant to the U.S. Digital Millennium Copyright Act ("DMCA") enacted in 1998, the Internet Service Provider ("ISP") that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user's website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner's agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party's contact information, a statement that the complaint is made in "good faith," and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article at here to learn more about how to prepare a DMCA take-down notice. Even if you don't reside in the U.S., you may use this great tool to stop an infringer whose ISP is in the U.S. from using your work.

Option #4 - Prepare a Cease and Desist/Demand Letter Yourself
When you don't want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It's best to do this in writing - a letter by surface mail seems to have more clout than email correspondence.

Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement - especially if you timely register your photographs - sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.

There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don't want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that "these discussions and offer to settle are an attempt to compromise this dispute."

Option #5 - Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a "contingency fee" which is based on the percentage of recovery. Or the fee may be a combination of both.

Option #6 - File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys' fees, as noted here.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.

In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only "actual damages" for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren't too speculative.

Additional Claims
While many photographers place "watermarks" including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it's fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement. More information is available in my blog entry here.

Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. "Willfulness" means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.

What You Can Do to Best Protect Your Images
To be eligible for maximum damages for copyright infringement and violation of your DMCA rights, put your copyright notice on each page of your website and put your CMI on or at least adjacent to each photo as well as in the metadata of your files. Instructions for adding your CMI to your metadata are available in my blog entry here.

Further, register your photos with the U.S. Copyright Office ASAP! The Copyright Office recently made online registrations possible, too. Check my article to learn the details and for instructions on how to register your work.

Conclusion
Infringements are rampant these days, both because it's easier for the infringers to find and copy your images and because too many people think that they have a right to use your photos when they don't or think that they won't be caught. Fortunately, there are many tools to battle copyright infringement. It's up to you to use them.

Copyright and Registration MisInformation

2009-05-26T20:42:00.000-07:00

Rebecca Tushnet over at her 43(B)log (the name is related to Trademark Law) rightfully complains about the misleading information given in the Washington Post article referred to in my May 19, 2009, blog. The differences and the importance of keeping the terms of "copyrighting" vs. "registering" your copyrights separated is explained in more detail in my June 21, 2006, blog.

But the most important information provided in the Washington Post article is that it's taking a long time to get your registration certificate back from the US Copyright Office. Because most federal circuits follow 17 USC 411(a) of the Copyright Act strictly, you must have received the registration certificate for your copyright to file a copyright infringement action. While you can pay a "special handling" fee of an additional $685 to have your copyright registration expedited, that's a high price to pay. It's best if you register your copyrights as soon as possible. Check my article for information on how to register your copyrights using the eCO system.

Quicklinks - Copyright and TM Registrations, Shooting in NY, & Rights Grab

2009-05-19T10:38:00.000-07:00

Copyright registrations are taking longer - Washington Post via Imaging Insider
Guidance given to NY police about the rights of and dealing with photographers - Carlos Miller.com
Registering your blog name as a trademark - Dear Rich
Ustream.tv takes "a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast and otherwise exploit such User Submissions in any form, medium or technology now known or later developed, including without limitation on the Site and third party websites" of your submissions and requires that you "execute and deliver such documents and provide all assistance reasonably requested by Ustream.tv to give to Ustream.tv the full benefit of the rights granted to Ustream.tv by you." - Ustream Terms of Service

Thanks to Walter Rowe and David Sanger for submitting these topics.

When You Definitely Need A Model Release

2009-05-19T07:28:00.000-07:00

American Apparel used a still shot of Woody Allen dressed as a rabbi from the Annie Hall movie (shots of the billboard are shown here). Mr. Allen didn't like it and sued.

In general, when people are in public, you may photograph them. The use of the photographs can be restricted due to certain privacy rights. See my September 14, 2005, blog for a summary of the different privacy rights.

Mr. Allen's claims against American Apparel included violation of his rights under New York Civil Rights Law Sections 50 and 51 and for violations of Section 43(a) of the Lanham Act (15 USC 1125). You may review the specific sections of the NY laws online. Click on "CVR" for Civil Rights, then Article 5 for Right of Privacy.

Section 50 of the NY law states:

Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian [editor's note: a model release], is guilty of a misdemeanor.

Section 51 provides, in pertinent part:

Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action [editor's note: the court orders the defendant to do or to stop doing something] in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages [editor's note: money] for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.

Other parts of Section 51 are important for NY photographers to review but are not applicable to the Allen case:

[N]othing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; [and]

[N]othing contained in this article shall be so construed as to prevent any person, firm or corporation . . . from using the name, portrait, picture or voice of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith.

The Lanham Act is federal law and applies throughout the United States. Section 43(a) provides:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Privacy rights are recognized in most states, but the specific laws are different for each one. The National Conference of State Legislators and The Reporters Committee for Freedom of the Press provide an overview of them. Check with your attorney for more information.

The Allen lawsuit reportedly has settled for $5 million. What to learn from this case? Get a model release to protect yourself and to make your photos more attractive to potential buyers.

Update #2: Google Improves Terms for Photography Prize Competition!

2009-05-18T09:18:00.000-07:00

As another follow up on the Google Photography Prize Competition, Google has revised its Terms and Conditions at the request of Martin Parr and Magnum Photos. Mr. Parr reported the progress of the changes on Flicker, using the moniker "parrpolygon." While the terms aren't perfect, they are much better.

Previous T&C:

However, by entering the Competition, and to the extent allowed by law, entrant grants Google and its affiliates, licensees, promotional partners, developers and third party marketing entities a non-exclusive, perpetual, worldwide, royalty-free license to edit, modify, cut, rearrange, add to, delete from, copy, reproduce, adapt, publish, exploit and use the Photographs themselves and the content of and elements embodied in the Photographs, including any names, locations and likenesses, for the duration of the rights, in any and all media, including but not limited to digital and electronic media, computer, and audiovisual media (whether now existing or hereafter devised), and specifically for use as an iGoogle theme, in any language, throughout the world, and in any manner, for trade, advertising, promotional, commercial, or any other purposes without further review, notice, approval, consideration, or compensation.

Current T&C:

However, by entering the Competition, and to the extent allowed by law, entrant grants Google and its affiliates, licensees, promotional partners, developers and third party marketing entities ("Permitted Users") a non-exclusive, perpetual, worldwide, royalty-free license to modify, rearrange, copy, reproduce and adapt the images only to fit the format required for an iGoogle theme, product web pages and marketing materials, and to publish and use the Photographs themselves and the content of and elements embodied in the Photographs, including any names, locations and likenesses, for the duration of the rights, in any and all media, including but not limited to digital and electronic media, computer, and audiovisual media (whether now existing or hereafter devised), specifically for use as an iGoogle theme, in any language, throughout the world, and in any manner, for advertising, promotional, commercial, or any other purposes related to the Google Photography Prize or in iGoogle branded content without further review, notice, approval, consideration, or compensation, provided that after the fifth anniversary of the awarding of the Photography Prize entrant may terminate this agreement with Sponsor by contacting Sponsor in writing, in which event entrant's Photographs and other materials in which entrant has intellectual property rights will no longer be reproduced or used by Permitted Users and will be removed within 30 days after receipt of notice by sponsor, except that Sponsor may continue to use such Photographs and materials in connection with the Photography Prize and the promotion thereof.

Here's a copy with the changes tracked (click to enlarge):

As a result of the changes, one prize includes (once again) "an invite to spend a day with Martin Parr."

Hooray!

Thanks to Paulo Rodrigues for contacting Mr. Parr and to Rodrigues and John Goldsmith for submitting this update.

Sharing the Love AND Your Photos?

2009-05-16T10:29:00.000-07:00

iLovePhotos is "free software for your Mac that helps you organize, share, and enjoy your photos based on the people who are in them." But the terms of service provide:

In order for Blue Lava to make the Service available to you, you hereby grant Blue Lava a royalty-free, non-exclusive, perpetual, irrevocable, worldwide right and license which may be sublicensed or transferred, to use, display, distribute, reproduce, copy, make derivative works from, modify, adapt, transmit, translate, perform, publish and sell your Content in mediums or formats now known or later developed.

Blue Lava may work with third parties to provide users with the option to purchase DVDs, CDs, photo albums or photo books containing such users' content or other users' submitted Content. Blue Lava does not monitor such purchases or control the ultimate distribution or sharing of such Content by others.

Maybe that's a little bit more love than you want to share.

Thanks to Walter Rowe for providing this alert.

Update to Google's Rights Grab

2009-05-16T09:32:00.000-07:00

As an update to the rights grab by Google reported in my May 9, 2009, blog, the only change is a a bad one. While the rights-grabbing terms are the same, Martin Parr is no longer part of the prize package.

It appears Parr saw the light. Too bad Google hasn't.

Thanks to Paulo Rodrigues for the update.

Update to Photography Not Allowed - 31

2009-05-15T10:14:00.000-07:00

The world is buzzing about the Shane Becker incident reported in my previous blog, including Seattle's newspaper, The Stranger.

Check the quote by Attorney Doug Klunder there:

"These come up all the time, and the ultimate answer ends up being yes [the photographer] had the right to take the photo and should not have been arrested and detained. It would be really nice if officers would start realizing that [before making an arrest] rather than going through this rigmarole."

Ditto!

Trademarks Removed In Photos of Flight 1549

2009-05-13T16:57:00.000-07:00

Photographers often take pictures that include trademarks or trademarked items in them. Trademarks are words, symbols, packaging, colors, sounds, scents or a combination of these that allow customers to identify the source of goods or services. Infringing a trademark occurs when the use of the mark causes likelihood of confusion as to the source of the product or service.

Trademark law also provides protection for trademarks from dilution by blurring and dilution by tarnishment. Blurring occurs where the connection in the consumers' minds between the trademark owner's mark and the trademark owner's product or service is weakened. Tarnishment is when the use of the mark is unsavory or unwholesome or when the mark is used in connection with inferior products.

However, trademark law allows for noncommercial and fair uses, such as nominative or descriptive uses, of trademarks. You may also use trademarks in all forms of news reporting and news commentary.

So why would US Airways require Stephen Mallon to remove the US Airways logo before posting photos of the airplane from Flight 1549 that had an emergency water landing on his blog or on Wired.com? PDN Pulse has the before and after shots.

Nothing about the uses of Mallon's photos would infringe or dilute US Airways' trademark. At minimum, these are nominative and/or noncommercial uses and likely would be considered news reporting. Instead, this is another ridiculous control of photographers that is not based on the law. Check my September 21, 2008 and March 23, 2009 blogs for other examples of this struggle.