Wednesday, November 21, 2012

The Legal Lens: Orphan Works

The Legal Lens
with Samuel Lewis

Q. Over the last few entries of The Legal Lens, we’ve been discussing contract issues.  However, something has come up that I’d like you to address, particularly since I understand the issue may be time sensitive.  What can you tell me about orphan works?

A. The term “orphan works” relates to copyrightable works where it is difficult or impossible to identify or locate the person who created the work.  If the person who created the work cannot be identified or located, then there is no way to obtain consent or a license to use the work.  As such, a person wishing to use an “orphan work” must make a difficult decision:  use the orphan work and potentially face liability for copyright infringement or select a different work where it is possible to locate the author and obtain consent and/or a license.

According to a notice issued by the Copyright Office in October, the “[Copyright] Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system.  For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace.”  As it did a number of years ago, the Copyright Office is calling for comments regarding the “orphan works” issue.  The last time the Copyright Office called for comments, proposed legislation (the Shawn Bentley Orphan Works Act of 2008) followed that had the potential to significantly impact the rights that copyright holders currently enjoy under the law. 

We’d all like to think that someone who wants to use our images will be able to find us.  For those of us who are meticulous about using copyright notices and may have a presence on the web, it may be possible to locate the photographer who holds the copyrights to certain works.  However, that’s not always the case, and since many photographers register batches of images with each registration, the Copyright Office database may not be helpful for locating the photographer who created a specific image.  According to testimony that various university librarians submitted the last time the Copyright Office called for comments, the problem is a very real one:  Cornell University’s librarian reported that the library’s collections include more than 350,000 unpublished photographs that it would like to make available, but only 1% of the photographs include any indication of who created the image; the University of California, San Diego librarian reported that only about 4,000 of the more than 100,000 photographs in its collection could be made accessible over the Internet.

Q. Why does it seem like this issue is more of a recent phenomenon?

A. In many respects, it is a recent phenomenon, since it relates to the fundamental change to copyright law brought about by the current Copyright Act (the Copyright Act of 1976 as amended).

Under the current Copyright Act, the copyright system underwent a fundamental change.  Prior to the current Act, the copyright system was an “opt-in” system, meaning that if you wanted to protect your copyrights, you had to register the work with the Copyright Office (you also had to use the copyright notice to put people on notice that the work was subject to copyright protection).  With the current Act, the system changed to being an “opt-out” system in which all works are subject to copyright protection from the moment they are “fixed” (is saved in a sufficiently permanent or stable state to permit it to be perceived, reproduced, etc.—a digital photograph is “fixed” when it is saved to a memory card) unless the person creating the work elected to opt-out of the copyright protections.

The shift from an opt-in to opt-out system was further complicated by a change in the Act relating to the use of the copyright notice.  In order to make U.S. Copyright Law consistent with international law, the requirement of using the copyright notice was dropped for all works published after March 1, 1989.

Q. You mentioned that legislation was proposed to address the issue.  What happened with the legislation?

A. A version of the legislation passed the Senate, but went no further.  While the legislation was pending, the NPPA spoke out against it.  Various organizations, including the APA, Editorial Photographers, Stock Artists Alliance and ASMP also issued releases opposing the legislation.  For a more detailed discussion on some of the problems in that legislation, see my article that appeared in December 2008 Digital Photo Pro magazine entitled “Orphan Works Explored:  How will changes in copyright law affect you and your rights over your photography?” (available on the web: ).

Q. What should photographers do to have their viewpoints on the orphans work issue considered?

A. The Copyright Office has called for comments regarding the issue, and those comments are due no later than January 4, 2013 at 5pm.  Comments must be submitted electronically, and the Copyright Office has set up a page specifically intended to be use for such submissions ( 

If you have an opinion or viewpoint on the issue that you would like to have considered, you should submit comments to the Copyright Office.  If you are a member of an organization such as NPPA or ASMP, you may wish to check with the organization to see if it is preparing comments for submission.  While those comments may not mirror your own viewpoints on the issue, they may highlight certain issues that will better inform the comments that you ultimately submit to the Copyright Office.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Florida, and a professional photographer who has covered sporting events for more than twenty-five years.  He can be reached at or

Note:  The information appearing in this blog entry is not, nor is it intended to be, legal advice, and should not be construed as such.  Rather, the information is provided solely for educational purposes by providing general information about the law.  This blog is not a substitute for legal advice from an attorney licensed to practice in the state where your business is based or where you live.

Thursday, November 8, 2012

Photography Is Not A Crime: Carlos Miller's Attorneys Prove it Again.

Miami freelance photographer Carlos Miller likes to challenge authority. Many people say he is a “jerk”. He is a “bit” adversarial when it comes to police press relations and has been cuffed three times for it.

But there is no law that says, you can't be a jerk.

Miller was arrested while documenting city and county police officers evicting Occupy Miami protesters last January. In the days leading up to the eviction, police kept tabs on Miller's Internet posts and singled him out for arrest. 

Nine months after his latest run in, the verdict is out. On Thursday, November 8, Miami-Dade County jury found Miller not guilty for resisting without violence when confronted by Miami-Dade Police Public Information Officer Nancy Perez.

Arrested by a public information officer? That alone should raise a few eyebrows and question what the heck is really going on here.

According to a paraphrase on Miller’s blog, the prosecutor told jurors, a real journalist is supposed to follow police orders without a second thought. A real journalist would never back talk to police. A real journalist would never question a direct police order as to why he was not allowed to stand on a public sidewalk.

One of Miller’s defense attorneys, Santiago Lavandera, delivered a slam dunk, high five closing statement that went like this.

“In this country, when you’re a journalist, your job is to investigate.
Not to be led by your hand where the police want you to see, so they can hide what they don’t want you to see.

No, when you’re a journalist, a real journalist, it’s your job to go find the truth. As long as you are acting within the law as Mr. Miller was, you have the right to demand and say, ‘no, I’m not moving, I have the right to be here. This is a public sidewalk, I have the right to be here.’

He did his job. He has the right to do his job the way he sees fit. It’s not up to these prosecutors to tell anybody, much less an independent journalist, how to do their job. It’s not up to the police officers, it’s not up to a judge or the president.

In this country, journalists do their job the way they see fit.
What he is describing is Cuba. What he is describing is a communist country. The government says you can’t be here because I say you can’t be here. And it’s infuriating to me that a prosecutor would try to get up here and try to convince you that just because a police officer says something, that he has to bow his head and walk away. That is a disgrace to the Constitution of this country.”

Updated 11-9-12
As a photojournalist I’ve been threatened with arrest on numerous occasions both domestic and foreign. Fortunately, I've been lucky. I’ve known when to back off and when to file a complaint. I have never been arrested in over three decades doing my job.

Miller has been arrested three times in five years. It happens when he is on assignment covering a news event but the way I see it his real work begins after the arrest as he blogs about it.

That’s what bothers me about all this. Why should the police embroil themselves into arresting a freelance photographer? I’m sure they have their motives but the perceived lack of knowledge many police officers in the country have on civil rights are failing to protect our tax dollars. Money wasted by unlawful arrests of citizens and journalists and the judicial process that follows, both criminal and civil.

For more on Carlos Miller and this case go to:

On a coincidental side note: The judge in the case, Miami-Dade County Judge Ed Newman and bailiff Tony Nathan are both former Miami Dolphin teammates.

The Bello Family Relief Effort

Getty photographer Al Bello’s family home has suffered extensive hurricane damage. Not once but twice, last year during Hurricane Irene and now Hurricane Sandy’s onslaught in Merrick, NY.

The storm surge from Hurricane Sandy, the largest Atlantic hurricane on record, destroyed the main floor of their home. Fearing for their lives the Bello family retreated from the rising water to the second floor and watched six-foot plus waves rolling down the street just outside their window.

Photographer Donald Miralle spoke with Al Bello this afternoon and says Al’s in great spirits as he guts the downstairs to it’s timbers... again. Bello says he is humbled by the support he has received so far.

Miralle and his wife Lauren started The Bello Family Relief Effort on facebook Monday, November 5th.

By Donald Miralle 

One of our close friends Al Bello and his family, recently survived Hurricane Sandy. Their house cannot say the same. They live in Merrick, NY which is located on Long Island. Last year, their home sustained catastrophic damage from Hurricane Irene. Just in the past couple of months, they completed the rebuild of their home from that storm only to have this larger storm come through and destroy the entire first floor again. As of 11/5/12, Al and his family are still without heat or electricity.

For those of you who don’t know Al he is a world-class photographer for Getty Images, and a selfless person who is always there to help out others. He is married to one of the sweetest human beings, Debbie, and they have two beautiful kids Nicole and Daniel. They have faced great adversity in the past couple of years, but you will never hear Al complain about it. Ever.

They face another long road of dealing with insurance, FEMA, contractors, temporary relocation, etc. When I asked Al last week “What can we do to help you guys?”, he replied “Can you build me a house?” Our hearts are breaking for them and we want to help. We can’t build a house but we can help to raise money for their family to help offset some of the financial burden from this repeat tragedy.

We have set up a benevolent fund for the Bello family at Comercia Bank. Donations can be made the following ways:

1. Send via paypal account
If you opt to donate via Al's paypal account (, Dan Krouse had the following helpful tip: "if you select "personal" and "payment owed" when you send payment, it doesn't take a cut." Thank you, Dan!

2. Wiring funds (routing # 121137522 and account #1894689049)

Comerica Bank - MC 4583
1000 Aviara Parkway, Ste. 104
Carlsbad, CA 92011

3. Making a deposit at any Comerica branch to account #1894689049 (Account name: The Bello Family Relief Fund)

4. Mailing a check to us made out to The Bello Family Relief Fund.
C/o Lauren Miralle
Farmers Insurance
5751 Palmer Way Ste. H1
Carlsbad, CA 92010

100% of the funds donated will go directly to the Bellos. We have set up a facebook page for this at and please feel free to pass it along to anyone who you think can help. I know there are so many people who need our help in the aftermath of Hurricane Sandy and thank you for taking the time to care for this incredible family!!!

Here is an account from hockey photographer Bruce Bennett 
who recently visited the Bello home.

By Bruce Bennett

While doing Hurricane coverage, I made it a point of stopping by Al’s home. The first floor of his home was devastated with water mixed with sewage reaching up about 4’ high. They had braced for an Irene style foot of so, and struggled against the rapidly rising tide to move more possessions up to the second floor where they eventually relocated as they had to abandon the main floor for fear of losing their lives.

Al’s harrowing story of survival from the second floor of their home - flicking a flash light to multiple neighbors across the street in the same situation to signal that they were safe, and his account of seeing waves of 6 foot and higher rolling down his street, left me as speechless and he and his family were as they watched the power and force of the water below them.

The view of his couches, personal possessions and plasma TV on his front lawn for garbage collection didn’t really tell the whole story, but it was a gut wrenching site to say the least.

And yet when I stopped by, Debbie and Al, armed with elbow long gloves went about the job of clearing and cleaning their home. Al, being Al, would NOT permit his children to assist in the cleanup and sent them to a relatives’ home. He said that he never wanted his children to remember this horrible scene that would be permanently etched with memories of the stench of sea water mixed with sewage and the site of throwing out their personal treasured possessions. What they experienced already the night of the day and night of the storm was horrific enough. 

There is no more decent human being than Al, no one more accommodating, more talented or more humble. Please help if you can. From someone who saw the despair and anguish on his face first hand, this is the time to thank Al for all he has done for all us.

Then there is this from photographer Alexis Cuarezma 

You can now register for this Sunday's Workshop for only $100 and also help out a great cause. The proceeds from this workshop will go to directly to The Bello Family Relief Effort and help a great friend & mentor of mine & his family. Al Bello was one of the 1st people who genuinely and selflessly helped me out with my photography career. Because of him, I found out about Eddie Adams Workshop and applied, because of him, I went to NY, got assignments from the NY TIMES, LA TIMES and also met more amazing people who have helped me in my career.

At the very least, please share this flier with any photographers who are interested in learning about portraiture, lighting & post processing. The workshop takes place this Sunday, Nov. 11th in the San Francisco Bay Area. 
You can register here: Embrace Your Visual Soul

Thursday, November 1, 2012

George Quiroga wins Al's Think Tank Photo Pirate's Booty Halloween Contest

Contest winner, George Quiroga's self portrait.

George Quiroga wins first place in Al's Think Tank Photo Pirate's Booty Halloween Contest! 
George dared to walk the plank in his self portrait wearing chainmail while brandishing a massive sword. It was enough to convince the judges, Chuck Fadely and David Santiago.

Congratulations George and thank you to all that entered this year's Halloween contest. Check back for future contests with prizes supported by my sponsors.

Here is the original post to the contest with entry rules.