Field Report:

The Non-Glamorous Side of Photography

ASPP Event: Copyright / Copywrong in Image Licensing

I had the opportunity to attend a fantastic lecture this past Saturday that was hosted by the American Society of Picture Professionals (ASPP) and Picture Archive Council of America (PACA). The featured speaker was Nancy Wolff who is an attorney that specializes in intellectual property law. There were quite a number of people packed into the venue which was a photography studio in Culver City. The audience appeared to consist of photographers, stock photo agents (including one of mine), publishers and filmmakers. I was told that that is what the difference between the ASPP versus the other photography trade organizations because it caters to everyone involved with in the photography industry not just photographers. I tried my best to take notes for those of you who might not have had the opportunity to attend. Keep in mind that I’m no legal expert but here goes:

– The event was sponsored by the Copyright Clearance Center and they wanted to promote their new image licensing platform called Ozmo. (I personally know nothing about this product or the organization so I have no opinions on this at the moment.)

– Nancy started off by listing several popular myths regarding photo copyright laws including, “If I remove my image after being served a notice, I don’t owe any money.”

Copyright Basics

– Copyright laws were founded to give incentive to creators to continue advancing the arts and sciences in the U.S. The incentive is exclusive rights to the work for the length of the author’s life + 70 years. For corporations it is the lesser of 95 years from publication or 120 years from creation. I believe this time period designation was established in 1978.

– Anything created 1923 is now part of the public domain.

– Works not protected by copyright law include anything created by the U.S. government. (I got the impression that this is not as black and white as it sounds.)

– Copyright laws were revised again in 1989 stating that copyright notices were no longer required to be displayed in order to claim ownership. This is purely voluntary but recommended. A proper copyright symbol goes like this – ©year, name.

– Freelancers by default own the copyright to their work. However if you are an employee (work-for-hire) then the employer owns the copyright.

Fair Use

– Allows for limited duplication of material for educational uses including criticism, news, teaching and research. A good example would be photocopied class handouts, short excerpts and quotes.

– Fair Use is not about merely choosing an image to illustrate a news story just because it might look appropriate alongside the words. The image must actually be the news story. (I’m trying to paraphrase this part.)

– Must be transformative. Not merely repackaging the work. Does it harm the creator in any way?

– Parody can be fair use such as the famous Annie Leibowitz picture / Vanity Fair cover of a pregnant Demi Moore being mimicked for the Naked Gun 33 1/2 movie poster.

Nancy proceeded to show more side-by-side comparisons of situations that claimed Fair Use.

– Social commentary can be Fair Use.

– Merely changing the medium is still an infringement because it is derivative works.

Most in the crowd seemed to believe that Shepard Fairey, creator of the Obama Hope poster, infringed on the AP’s photo by creating the poster without asking for permission. Nancy mentioned something interesting that when Fairey sued the AP, the AP countered by hiring the attorneys that had just defeated the Stanford University Fair Use Project in a recent case.

Copyright Infringement

– Who is responsible if there is an infringement? The publisher, includes both companies and employees.

– One must show that the infringer had access to the original works. (I think this means that if the “infringer” has never seen the original work in question then it might not be an infringement and just merely coincidental similarities.)

– There is no hard and fast rule to determine “substantial similarities” as this is determined in court on a case-by-case basis. The judge will often compare two images then use that to decide if the case will go to a jury or not.

Nancy then showed an example of a photographer that sued an ad agency. The ad agency had contacted the photographer to use an image but apparently didn’t like the price so they went out and photographed their own similar version. The giveaway was the featured model in both had the same jacket on in both images carrying a briefcase. The photographer was rumored to be very happy with the settlement.

She then had a section about Scenes a Faire, which means that certain scenes or ideas can only be seen in a limited number of ways hence not being eligible for copyright infringement. An example would be photographing a well-known landmark in a public place such as the St. Louis Cathedral in the French Quarter of New Orleans. The more staged the original work however, the more likely it is to be considered an infringement.

– Why register your photos with the U.S. Copyright Office? You can’t get attorney’s fees waived if not registered. (This is one of many reasons to do so.) This can be done so now by electronic filing. Send thumbnails in large quantities marked as unpublished works. If the photo has already been published before filing, then mark as published works. Once an image is registered you never need to re-register it again.

– Avoid sending your registration via USPS because since 9/11 stuff just gets backlogged and lost due to anthrax scares. Send it via FedEx if you must.

– Internet Service Providers have a safe haven. When serving a take-down notice, you have to send to the ISP’s registered agent and give them proper time to address the situation? (Wasn’t quite clear in my notes.) You also have to identify the work in question, the location of where the infringement can be found, include either a physical signature or electronic signature on the document.

1st Amendment

– The 1st Amendment offers much more protection for editorial uses including art, news, and exhibits. Commercial uses have much more limited 1st Amendment protection.

– A proper model release should contain the name of the model, date of birth and have a witness’ signature. This applies to the U.S. mainly because every country has their own laws. In some countries the model can decide at any time to invalidate your model release.

– Pets are considered property and require a release if they are well-known and has been exploited commercially in the past. (I think this is primarily to avoid brand confusion in the marketplace.)

– Buildings photographed from public areas do not require permission to publish commercially. Several property owners have tried to sue for trademark infringement such as the Rock & Roll Hall of Fame Museum in Cleveland suing a photographer for selling a poster of the city skyline. The museum lost because there was no obvious trademark apparent in the photo. Same goes for photos of the Empire State Building. There is no trademark confusion apparent.

At the end of the presentation, Nancy recommended visiting two sites: stockindustry.org and copyright.gov.

Next they had a door drawing for three of her autographed books. I won the 3rd. 🙂 For the record, I was planning to buy the book if I didn’t win it.

Question & Answer Session

– If a photo agency or an individual photographer wants to promote their own work are they allowed to use non-model-released photos in the promotional materials?

Nancy said there was not a lot of established legal precedent for this sort of situation. She thinks that if you have multiple images together in the promotional material then there is no confusion as to whether the model endorses your business. If you have a single photo depicted then it can more likely be questioned.

– Copyright doesn’t protect styles of photography. If you popularized photographing subjects on white seamless for example, then another photographer does the same idea then you can’t claim copyright infringement just because they used a similar style.

The PowerPoint presentation is available for download at the PACA website if you are a member.

Overall I would highly recommend attending a session like this if you are a professional artist or deal with intellectual property of any sorts. I learned new things and got some clarity on previously fuzzy concepts. You might think oh, law, boring academic stuff but this really was an interesting presentation and even entertaining at some points.

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April 5, 2009 - Posted by | Photo Business, Photo Industry News, stock photography | , , ,

2 Comments »

  1. A superb write-up Richard. I’m glad you were able to go. Thank so much for the excellent note taking. Cheers,

    Comment by Gary Crabbe / Enlightened Images | April 18, 2009 | Reply

  2. You’re welcome Gary.

    Comment by Richard Wong | April 18, 2009 | Reply


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