The Legal Lens: Troubling Developments and Narrowing Rights

The Legal Lens

with Samuel Lewis

Q. We took a short break since our last discussion.  Have there been any recent legal developments impacting photographers?

A. There have been a few troubling developments.  The first relates to legislation passed in the UK which permits the government to pass regulations relating to “orphan works.”  As we discussed a few months ago, orphan works include photographs and other copyrightable material where there is no easy way to identify or locate the photographer responsible for the creation of the image or work.

The legislation authorizes the British government to enact regulations that will grant licenses for orphan works.  These licenses will permit the use of a work—a photograph—as if the owner of the rights granted the license.  To put this into more personal terms, suppose that an advertiser found one of your images on the web.  If the advertiser is unable to identify that you own the rights to the image, or that you created the image, or even if they see a name but are unable to locate the right Al Diaz, the advertiser will qualify for a license if it can show that a diligent effort was made to locate you.  At that point, the advertiser will be able to use the image by paying a license fee to the British government, who in turn may deduct administrative costs from the license fee and hold the balance until you can be located.

This legislation may also be an indication of where the law is headed in the U.S.  While orphan works legislation was proposed and failed in the U.S. a few years ago, the Copyright Office has once again gone through the process of gathering information regarding orphan works that may result in another effort to pass orphan works legislation in the U.S.  Given the potentially significant consequences this sort of law may have on photographers, it is important to follow the issue and, where appropriate, voice concerns to lawmakers.

Q. What about IPTC caption information?  I’m putting caption information, including a copyright notice, in all of my images.  Is there a way to keep the IPTC caption from getting stripped off?

A. At least as it stands now, there is no way to keep the IPTC information from getting stripped off.  When you’re dealing with a standardized file format like a JPEG, you’re dealing with a file that contains distinct markers which enable software to read and/or modify the EXIF and IPTC fields.  Since those markers are more or less standard to the format, it is a trivial matter for a programmer to create a program to read the image file, search for the specific marker, and eliminate the data stored with that marker.  The only way to prevent information like a copyright notice or contact information from being stripped out is to store it somewhere other than the typical fields for such information, and this may result in more photographers watermarking their images.

It is also important to realize that some social media websites strip off or prevent access to the IPTC and EXIF information. This is especially true with social media sites like Facebook, Flickr, and Twitter, which strip off some or all of the EXIF and IPTC information, or fail to properly display the information.  The result is an image that can be downloaded without any meaningful way of identifying the person who created the image.

There is a final point worth mentioning here.  Simply including a copyright notice may not be sufficient to increase the likelihood of a potential user of an image finding the photographer who created it.  Photographers who don’t currently include some sort of contact information or link to a website with contact and licensing information should probably begin including this sort of information when editing the IPTC fields.  However, while adding this sort of information will help locate the photographer, the information will only be available if has not been stripped off by one of the social media services.  Thus, photographers should test whether EXIF/IPTC information is available for images uploaded to the various social media sites they use; if the EXIF/IPTC information is removed, careful consideration should be given to whether to upload images to that particular site.

Q. You mentioned there were a few troubling developments.  What else is new?

A. Peter Cariou’s case against appropriation artist Richard Prince suffered something of a setback.  Cariou sued Prince over his unauthorized use of Cariou’s photographs from the book Yes Rasta.  The trial court found that Prince had infringed Cariou’s copyrights, and entered judgment in favor of Cariou.  Now, a federal appeals court has reversed that judgment, and determined that 25 of the 30 pieces of Prince’s artwork fell within the fair use exception to copyright, and thus, do not infringe Cariou’s rights.  The appeals court also criticized the approach the trial court took when analyzing fair use issues, and sent the issue of the remaining five pieces of Prince’s artwork back to the trial court for a determination as to whether those constitute an infringement or fair use (including whether the artwork is transformative in nature).

Photographers should continue to watch how this case develops.  The remaining five pieces of artwork were only minimally altered, and there is a question “whether such relatively minimal alterations render [the artworks] fair uses (including whether the artworks are transformative) or whether any impermissibly infringes on Cariou’s copyrights in his original photographs.”  If the court ultimately finds that Prince did not infringe any of Cariou’s copyrights, such a decision may have significant consequences for anyone who creates images.

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 SLewis@FeldmanGale.com or SLewis@ImageReflex.com.

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. 

There is a message thread on this subject at SportsShooter.com, Click here for the link

The Legal Lens: Judge Rules On Daniel Morel Twitter Photo Grab

The Legal Lens

with Samuel Lewis

Q. Last month, we talked about Instagram and the brouhaha over changes to its Terms of Service (TOS).  Has the new TOS gone into effect?

A. They have, although it seems the uproar over the TOS has quieted down.  Unfortunately, the TOS contains the same language that caused me concern when we discussed the issue last month.

Q. Have there been any other recent developments?

A. Well, not with Instagram.  However, there has been a development in a significant case involving Agence France Presse, Getty, the Washington Post, photojournalist Daniel Morel and Twitter’s TOS. 

Morel was in Haiti in January, 2010, when the earthquake hit.  He then posted some of his images to Twitter.  Shortly after Morel uploaded the images, they were reposted by another Twitter user.  AFP’s Director of Photography for North and South America found the re-tweeted images and sent eight of Morel’s images to the AFP photo desk.  AFP ultimately transmitted the photographs to Getty, who in turn provided the images to the Washington Post (the Post published four of Morel’s images).  Because of the way the images were originally obtained—from a Twitter account other than Morel’s—the images weren’t even credited to Morel initially.

After learning that the images belonged to Morel, and that AFP and Getty did not have permission to publish or license the images, AFP filed a petition against Morel in the U.S. District Court in New York seeking a declaration that AFP use of Morel’s images was covered by Twitter’s TOS, and therefore, the AFP did not commit copyright infringement.  Morel countersued AFP for copyright infringement, and also asserted claims of infringement against Getty and the Washington Post.

On January 14th, U.S. District Judge Alison J. Nathan released a 58-page summary judgment opinion (summary judgment is issued when a court is able to resolve aspects of the case—and sometimes the entire case— by making final rulings on legal issues based upon undisputed facts; summary judgment prevents a court and the parties from wasting time with a trial when there is no dispute over the facts and it is just a matter of applying the law to those facts).

Under Twitter’s TOS, users like Morel grant Twitter the right to make content “available to other companies, organizations or individuals who partner with Twitter for syndication, broadcast, distribution or publication of such” content.  Similar to Instagram’s TOS, Twitter’s TOS provides that any such use of content may be made without compensation to the user who posted the content to Twitter.  AFP contended that this language was broad enough to give it the right to use images posted to Twitter.

With regard to Twitter’s TOS, the Court ruled squarely in Morel’s favor.  As the Court explained, “it suffices to say that based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case . . . Put differently, the evidence does not reflect a clear intent to grant AFP a license to remove [Morel’s images] from Twitter and license them to third parties . . . .”  The Court went further when addressing both AFP and the Post:  “AFP and the Post raise no other defenses to liability for direct copyright infringement, and, in fact, concede that if their license defense fails—as the Court has determined that it does—they are liable for direct copyright infringement.”

Unlike AFP and the Post, Getty also argued that it is not liable for copyright infringement because it is entitled to the benefit of the safe-harbor (limited immunity) applicable to online providers under the DMCA.  The Court found that there is a factual dispute, and thus, Morel will have to proceed to trial against Getty and let a jury decide if Getty qualifies for the limited immunity under the DMCA.  Similarly, the question of whether AFP, the Post and Getty are willful infringers is an issue that will have to be resolved at trial.

Q. This sounds like a good decision for photographers.  Is it?

A. The decision is good from the standpoint that the Court did not find the language of Twitter’s TOS to be sufficiently broad to permit agencies like AFP to license the use of the images to others.  While the Twitter TOS is broad enough to allow Twitter and others to republish the tweets, including images, it was not interpreted so broadly as to permit AFP or the Post to use the images without consent (although the way that the next court interprets the Twitter TOS may be different).

However, the Court’s analysis regarding damages was not so good for Morel.  In fact, the Court squarely rejected Morel’s theory of damages, which would have resulted in an award of statutory damages against AFP and Getty “in the tens or hundreds of millions of dollars.”  AFP and Getty argue that they are only liable for one award of statutory damages each—a maximum of $30,000 per image for infringement, and up to $150,000 per image for willful infringement—and not responsible, as Morel contended, for an award of statutory damages for every subscriber who used the images.  The Court ultimately ruled that “AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.”

With the Court’s decision on damages, AFP, the Post and Getty have a considerably better idea as to their possible exposure—the amount that may be awarded—should the case proceed to trial. Unfortunately, those damages are considerably less than Morel was seeking in the case. 

Q. What should photographers take away from this decision?

A. If there’s one thing to take away from the decision, it is the importance of reading the fine print when using social media sites.  Much of the decision in Morel’s case turned on the Court’s analysis of the Twitter TOS, and considering each term and phrase within that TOS.  However, since the TOS vary from one social media site to another, the same phrase that tipped the scales in favor of Morel in Twitter’s TOS might not be present in the TOS for any other social media site.

RELATED STORIES: Lens Blog: New York Times;  PetaPixel

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 SLewis@FeldmanGale.com or SLewis@ImageReflex.com.

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.

The Legal Lens: Photographers and the Written Contract

Photos by Sam Lewis

By Al Diaz 
aldiaz@aol.com 

As a Miami Herald staff photographer I've had a limited need to learn about the legal aspects of the business of photography; contracts, copyright, sales and marketing. Bottom line, the Herald owns everything. 
    
Until recently the only legal concerns I’ve had is knowing my civil rights while photographing in public places, or how to avoid arrest while doing my job covering a fire, riot, armed conflict or a simple traffic accident. 
    
With the state of the newspaper industry I have job insecurity. Hoping for the best but preparing for the worst I spend my spare time building my webpage, tweeting, blogging, branding and basically getting ready for the future. 

Now that my social media is up a running I need to educate myself on the legal side of running a photography business. 

It’s time to ask my friend Sam Lewis a few legal questions and how to protect myself while pursuing our profession.  In addition to being an attorney, Lewis is a professional photographer who interned at the Herald a few years after I joined the staff there.


The Legal Lens will be a monthly Q&A with Lewis on all legal aspects of photography. 

If you have questions or suggestions for this feature, please e-mail them to AlDiaz305@aol.com or SLewis@ImageReflex.com.

Sam Lewis

The Legal Lens 
With Sam Lewis
SLewis@FeldmanGale.com

Q. Let’s take a few minutes to talk about contracts.  Why should photographers use written contracts?

A. I encourage all clients, especially photographers, to use written contracts.  When it comes to creative endeavors such as photography, written contracts can play a vital role in managing client expectations, which in turn protects photographers from the sort of claims that a dissatisfied client may assert. Click here for an example 

Even where a photographer has a good working relationship with a client, a written contract can be a useful and effective tool for clarifying the scope of a job to be done, 
and ensuring that everyone knows where they stand if for some reason things go wrong.

Q. Are there certain concepts that should be covered in a photographer’s contract?

A. The concept with which most photographers will no doubt be familiar is that of usage and compensation.  The agreement should clearly detail any usage terms, and where appropriate, who will own the copyrights to the images; the compensation should also be detailed. Where possible, the contract should include any details of the job that are known, and who will be responsible for various tasks that may go along with the job.  For example, who will be responsible for engaging any models or makeup artists, obtaining model and property releases, securing permits, etc.?  Addressing these sorts of issues up front goes a long way towards avoiding a problem on the day of the shoot.

The contract shouldn’t stop there.  It should also detail how disputes will be resolved, whether there are any limitations on the photographer’s liability, etc.  For a further discussion of what should be included, see my article published in the November 2009 Digital Photo Pro magazine, “Get It In Writing:  A lawyer’s secrets to better contracts”

Q. Some organizations like ASMP or PPA offer form contracts for their members.  What are your thoughts on those contracts?

A. Using a form contract is probably better than nothing, but you’re far better off using a contract that is tailored to your business and where you work, and has been prepared or reviewed by an attorney familiar with the laws of the state in which your business is based.  Since contracts are typically governed by state law, and issues such as limitations on claims can vary from state to state, it is a good idea to spend some time with a local lawyer who is knowledgeable about such issues.

It is also important to understand the legal ramifications of what is contained in the agreement, and this applies equally to form agreements and customized agreement.  Some of the form contracts include provisions that may have unintended consequences.  In an upcoming article slated to appear in Digital Photo Pro, I discuss some of the potential consequences of including an arbitration provision in a contract.

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 SLewis@FeldmanGale.com or SLewis@ImageReflex.com.

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.