Model Release for TFP Photo Shoots

Photo by Joseph Abbruscato, Used with Permission

Photo by Joseph Abbruscato, Used with Permission

Earlier this month, I had the pleasure of participating in an open photo shoot at a junkyard in Wittmann, Arizona. Dozens of photographers and models converged on this location to shoot around all day in and on the various broken down vehicles and other surroundings. It was a great event to meet other of photographers and models, and to work with the unique aspects of this setting.

As we entered the junkyard, there were 2 large neon green handwritten poster boards that reminded us that we were entering at our own risk, cameras were in use, and that our picture may be taken without our knowledge. Additionally, they said “If you do something stupid we know where to bury you” and “Don’t do anything you don’t want your mom to know about.”

These signs were brilliant and hilarious, but incomplete given that this notice was the closest thing we had to a model release for this event. As a model, I knew what I was getting into; but as a lawyer, it made me cringe.

Photo by Bob Johnson, Used with Permission

Photo by Bob Johnson, Used with Permission

What is TFP?
This was a TFP photo shoot – Trade For Photos or Time For Pictures depending on your definition. As I understand it, this means it was an open and free event where models and photographers could meet, shoot, and without any money changing hands. After the event, both sides will have had the experience, and the model will get images.

This particular photo shoot was announced as a TFP photo shoot on Facebook without any additional documentation. Without a written contract to the contrary, the photographers are the copyright holder’s to every image they created that day. The models have no copyright rights to the work, not even a license to use the images in their portfolio unless they get that permission from the photographer. Since the models didn’t sign a model release, the photographers can’t sell any of the images they created without risking violating the models’ right to publicity.

Writing a Simple Model Release
An effective model release does not have to be long, complicated, or filled with legalese. It can be a simple contract that everyone has to sign prior to entering the shoot that lays out the ground rules for the event. The model release should clearly state what rights the models give the photographers and with the photographers give the models in return – such as a license to use any image from the shoot in their portfolio or online with an attribution.

The release for this particular event probably should have included a liability waiver given that we were climbing in and on broken down vehicles and surrounded by broken glass and gagged metal. We all should have been required to sign off that we were responsible for our own actions and wouldn’t go after the owners of the junkyard or anybody present in the event that we fell or got tetanus.

I wrote a simple one-page model release for a swimming pool photo shoot last summer that every model and photographer had to sign with their contact information. This put everybody on the same page from the beginning of the event, including the acknowledgment of the “No Jerks” rule, and since everyone provided their contact information, it was easy for models and photographer to connect after the event.

The next time I see an invitation for an open TFP photo shoot, perhaps I should offer to write a simple release for the event, especially if I’m going to be a model there. If you have a question about copyright, model releases, or photography rights, please contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Burning CDs = Copyright Risk

CDs or DVDs by mlange_b from Flickr (Creative Commons License)

CDs or DVDs by mlange_b from Flickr (Creative Commons License)

For the last few weeks, I’ve received several questions about the legalities of burning entire albums from a friend’s CD collection and creating and giving mixed CDs to loved ones or as part of a corporate gift. These questions make me cringe.

The U.S. Copyright Act allows you to make an archival copy of media you’ve legally obtained, in case something happens to the original. This is for personal use, not to be shared with others. It is perfectly legal to create a playlist or mix CD from your music collection for your personal use. If you allow friends to copy your CDs, that is likely an illegal copy (unless the music is so old that it’s in the public domain). By burning a copy of your CD, you are depriving the artist and their record label of the royalties they would have earned had your friend bought their own copy.

To the person who asked me if they could make a mix CD of holiday music to send to clients and contacts, that really made me cringe. Not only would you likely be illegally copying and distributing music without a license, but you would also be informing your contacts through your actions that you either lack knowledge of copyright law, or you don’t respect it. Neither of those are a sentiment you want to have as part of your reputation.

The exception to this situation is to get permission to make these CDs by obtaining licenses for each song. I work with an organization called Ignite Phoenix that puts on awesome shows that showcase speakers’ passions. At several events, we wanted to highlight the musical talent in the Phoenix area, so one of our organizers contacted local bands who agreed to have one of their songs featured on an Ignite Phoenix compilation CD that was handed out to every attendee.

Remember, what you can legally do and what you may get away with are often different things. The only person who can come after you for infringement is the copyright holder. If they don’t know what you did or they don’t care, you won’t be sued for infringement. Although it is rare to hear about copyright infringement cases like this, they do happen. A woman in Minnesota was ordered to pay $1.9 million for illegally downloading 24 songs. The amount was later reduced to $220,000.

The interaction between the Copyright Act and technology is often confusing, with many gray areas instead of black-and-white answers. If you have any questions about copyright and avoiding the risk of infringement, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Why Taylor Swift Won

Taylor Swift 092 by GabboT from Flickr (Creative Commons License)

Taylor Swift 092 by GabboT from Flickr (Creative Commons License)

A few weeks ago, Jesse Braham sued singer Taylor Swift and her record label for $42 million for copyright infringement, alleging that she copied the lyrics from his song “Haters Gone Hate” in her song “Shake It Off.” Braham claimed to be the author of the phrases “Haters gone hate” and “Playas gone play,” which are similar to the lyrics in Swift songs. He claimed that Swift never could have written her song if it wasn’t for his. (Note: There are no other obvious similarities between these two pieces of music.)

Last Friday, United States District Court Judge Gail Standish dismissed the case in a brilliant fashion, saying, “At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them.”

So why did Taylor Swift win this case, legally speaking? (Anyone who read the article about the lawsuit probably thought Braham had no basis for bringing the claim.) Under the U.S. Copyright Act, to get a copyright, you need an original work of authorship that is fixed in a tangible medium. Writing lyrics for a song on paper or creating an mp3 of a song would each qualify as a copyrightable work. Short phrases are typically not original enough to quality as an “original work of authorship.” That’s why Paris Hilton couldn’t get a copyright for “That’s hot.”

If Braham had a copyright in “haters gone hate,” he could stop anyone from using the phrase unless they bought a license from him. As far as I know, he only went after Swift for infringement.

Braham also wanted credit as an author of “Shake It Off.” I suspect he was hoping for a similar outcome as the Sam Smith/Tom Petty case over Smith’s song “Stay with Me” where Petty was credited as a co-author in the settlement.

My question in this situation was, “What lawyer would take on case?” It’s a violation of the Rules of Professional Responsibility for a lawyer to file a lawsuit if their client doesn’t have a case. It turns out, Braham didn’t have a lawyer. He filed the lawsuit by himself. He also requested that the court waive the filing fees, saying that he had not had a job since 2006.

If you believe that someone is violating you copyright, please contact an intellectual property attorney in your community. These cases have to be evaluated on the facts of each situation. If you want to chat with me about a specific question related to copyright law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Residential Holiday Light Shows | Is That Legal

Christmas Lights by Luke Jones from Flickr (Creative Commons License)

Christmas Lights by Luke Jones from Flickr (Creative Commons License)

A friend sent a link to this article on Gawker about Kevin Judd of Riverside, California who had an awesome Halloween light show that was synchronized to music like Gangham Style . . . at least he did until his HOA shut him down. My friend asked if displays like this are otherwise legal.

To be clear, I’m not a scrooge when it comes to these types of light displays. I appreciate the time, effort, creativity, and innovation that goes into putting one of these amazing shows together. When I was a law student, watching the video of a light show to David Foster’s Carol of the Bells was the only thing that could make me smile while I was studying for finals.

Despite my enjoyment of these light shows, there could be legal issues related to them. The main one I see is copyright infringement. Whoever owns the copyright in a song gets to control where the music is performed. When you buy a song on iTunes, it’s for personal enjoyment, not for public performances. If anyone who created this type of light show, especially if it’s they’re making money from it, they should get a license to play it.

However, I wonder if these light shows qualify as a permissible use under fair use. (Fair use protects the use and transformation of others’ work to create new works, as long as you’re not interfering with artists’ ability to benefit from creating their original art.) My mnemonic device for the fair use factors is PAIN:

  • Purpose: Definitely transformative and noncommercial if you’re not charging people to watch it.
  • Amount Used: The whole song is typically used, but that makes sense given the circumstances.
  • Impact on the market: Attending a light show will likely not be a replacement for someone who only wants to listen to the music.
  • Nature of the Works: Integrating an audio file into a larger multimedia performance.

If someone is doing a light show on their home without charging a fee, there may be a decent argument that what they’re doing is protected by fair use. To date, I have no heard of a record label ordering someone to stop using their music in a holiday display on a home. I suspect they appreciate the free advertising and they don’t want to be seen as the mean rich record label that shut down the light show that made children happy.

Even though using music in a light show may be legal under copyright under fair use or a license, there may be other legal implications like HOA rules, city noise and/or light ordinances, and causing traffic problems. If you want to chat about the legal issues related to your holiday display, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

No Easy Answers in Social Media Law

Math Castle by Gabriel Molina from Flickr (Creative Commons License)

Math Castle by Gabriel Molina from Flickr (Creative Commons License)

Earlier this week I did an interview for Casual Fridays with Tyler Anderson about social media law. I had a great time talking about copyright, trademark, and the FTC rules that apply to social media and the internet in general.

Whenever I do a Q&A on social media law, I tend to get the same types questions over and over again:

  • Can I use any image I find online if I give an attribution and a link to the original? What if I’m not making money off it?
  • I just want to use 10 seconds of a song. Is that ok?
  • If someone sends me a photo, I own it, right? I can do anything I want with it, right?
  • How much do I have to change someone else’s work to qualify for fair use?

As I listened to Tyler’s questions, I realized that he and most social media marketers and entrepreneurs are looking for clear answers. They want things to be as black-and-white as possible, but unfortunately the law is filled with shades of gray, especially in emerging area of law where the technology is advancing faster than the law can keep up.

The best a person can do is to be aware of the basics of copyright, trademark, contract, and privacy laws and assume that there are no easy answers to their questions, even when it seems simple. I also recommend that business owners meet with their lawyers once a year (just like you meet with your accountant) to review their business and standards of practice to make sure that your business is in compliance with the law.

If you want more information about social media law, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Fair Use Victory!

Bambi vs. Godzilla (211/365) by JD Hancock from Flickr (Creative Commons License)

Bambi vs. Godzilla (211/365) by JD Hancock from Flickr (Creative Commons License)

The Ninth Circuit of the Federal Court handed down an important ruling regarding fair use this week. In Lenz v. Universal, aka the “Dancing Baby” case was about copyright, DMCA takedown notices, and fair use. The Electronic Frontier Foundation (EFF) sued Universal Music Publishing Group after Universal sent a Digital Millennium Copyright Act (DMCA) takedown notice when a mother uploaded a 29-second video of her baby dancing to a Prince song.

The key element of this court ruling is that the court declared that “copyright holders must consider fair use before sending a [DMCA] takedown notice.” Prior to this case, fair use was regarded as an “affirmative defense.” If you’ve seen my YouTube videos, you have seen this one where I declare, “Fair use is a defense, not a permission slip.” This court said that’s not the case, but rather that fair use is authorized by the Federal Copyright Act. There is no copyright infringement if your use of another’s copyright-protected work is permitted by fair use.

If you’re interested in learning more about fair use, I wrote a post that includes a mnemonic device for the fair use factors for a panel I did at Phoenix Comicon on fair use and fan art/fiction.

There are two downsides to the case (at least for now):

  1. Although the court said that copyright holders must consider fair use before sending a DMCA takedown notice, they only have to have subjective good faith belief that the use of the copyrighted work is illegal, even if this belief is objectively unreasonable.
  2. This ruling only applies to the Ninth Circuit. The Ninth Circuit is comprised of Arizona, California, and most of the western United States. However, this ruling is not binding on the other ten Circuit Courts, but they can take it under advisement in future cases.

This case is a step in the right direction and will hopefully lead to fewer abuses of the DMCA. You can read the EFF’s full report about the case here.

Footnote: This case took eight years to reach this ruling. Sometimes pursuing a lawsuit is the right decision, but you have to be prepared to be in it for the long haul.

How the copyright laws apply to the internet is a legal issue that is constantly developing. If you need a resource about how the law applies to social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about a specific question related to copyright or internet law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Working with People who Don’t Understand Copyright

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Here’s the scenario: You are a newly hired third party content creator for a company. You learn that your client has a habit of copying pictures from Pinterest or Google Images searches without verifying that they are allowed to use the images on their website and/or social media posts. They want you to do the same. What should you do?

Option #1: Your Client Needs an Education about Copyright
Some people truly believe they can use any image they find on the internet, particularly if they give an attribution and a link back to the original. There are so-called “gurus” who will tell you this is ok. It’s not.

What your client is likely doing is committing copyright infringement. Inform your client that he/she is running the risk of getting a cease and desist letter, a bill with a license, or a lawsuit. In the worst-case scenario, they could face a lawsuit for $150,000 per image they use, plus attorneys’ fees. Tell your client to thank their lucky stars they haven’t faced one of these consequences yet and advise them that the prudent thing to do would be to replace all images on their site with pictures they can legally use.

Use this an a teaching experience to educate your client about the importance of asking permission, using Creative Commons, and possibly exploring whether what they are doing in some situations qualifies as fair use.

Option #2: Your Client Understands but Disregards Others’ Copyright Rights
Fire your client.

This person is obviously an idiot. No money is worth being affiliated with this company. Run away as fast as you can.

Footnote: Every company should have a “No Jerks” rule when it comes to employees and clients. If you find someone violating this rule at a genetic level (not just having a bad day), cut all ties with them immediately.

The same rules about copyright that apply to your website also apply to your social media posts:

Whenever I work on a contract for the relationship between a company and an outside content provider, I always recommend that my client require an indemnity clause that will protect them if they are accused of intellectual property infringement based on material provided by the other party. Your contract is the master document for your working relationship. It should clearly define the parties’ obligations to each other which should include deadlines and deliverables and also how you will resolve problems when they occur.

If you want to know more about the complex issues related to copyright and the internet, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about this topic, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Pictures on your Phone – Who Owns the Copyright?

No Pants 2015 Photo by Devon Christopher Adams, used with permission

No Pants 2015 – Photo by Devon Christopher Adams, used with permission

Here’s the scenario: You’re out to dinner with a group of friends. You ask your server to take a picture of your group with your phone. Your server obliges. The image is on your device; but who owns the copyright – you, the server, or the restaurant?

To get a copyright, you need an original work of authorship that is fixed in a tangible medium. Taking a photograph of a group of people constitutes an original work fixed in a tangible medium, even when it’s just a digital file on your phone. The copyright holder has the exclusive right to control where their work is copied, distributed, displayed, performed, and what derivative works can be made from it. This person has these rights the moment a work is created – they don’t have to register their work with the U.S. Copyright Office to obtain these rights.

Given this information, who owns the copyright in this situation?

Is it You?
You orchestrated the photo and it’s on your phone. You may be the only one who can physically copy, distribute, and use the photo – at least in regards to the first time it appears away from your device. I can’t say for certain that the law would say you’re the copyright holder since you didn’t physically push the button to create the photo, it’s unlikely that anyone would challenge you for copyright rights.

Is it the Server?
If it wasn’t for the server, this photo as it is wouldn’t exist. From that perspective, the server could argue that he/she owns the copyright since he/she pushed the button that created the image.

Is it the Restaurant?
If your job involves creating intellectual property, your employer is the author and owner of all the intellectual property you create while performing your job tasks. However, a server’s job isn’t to create intellectual property; their job is serving food and providing customer service. The restaurant probably doesn’t have any claim to the copyright in the image.

A restaurant may have policy on their social media profiles or posted in the restaurant that says you grant them a license to use any content you post about them. If you post the image online, they may be able to use the image without asking for additional permission, but they still don’t own the copyright.

So who’s the copyright holder – the server or the person who owns the camera? I’m not sure. I’d have to evaluate the specific facts of the situation. But here’s my question: does it matter? What is the likelihood that there are going to be problems related to this image? Will the server ever see or care if you post the photo? Probably not. And even if they do, I suspect he/she won’t care.

Copyright is a complicated issue, especially when it involves the internet. If you want to chat more about this topic, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Trademark Registration Workshop for Bloggers

The Anxious Type by JD Hancock from Flickr (Creative Commons License)

The Anxious Type by JD Hancock from Flickr (Creative Commons License)

I’ve been on my soapbox for a while about the importance of registering your trademark if you have a blog. Even if your following is small, you want to stake a claim to your site’s name because if someone registers your name before you, they can essentially shut down your site. If they register your name as a trademark after you’ve started your site, you don’t have to shut down your site, but you can’t grow you market.

This is not a new problem but it is getting more complicated in the online world. The most infamous trademark story I know in the brick-and-mortar world is about two different Burger King restaurants. The most infamous situation in the blogosphere is the Turner Barr situation:

When I speak at social media and blogging conferences, I encourage everyone who has a blog to register their site’s trademark with the U.S. Patent and Trademark Office (USPTO). (Ditto for vlogs and podcasts.) A lot of people agree that it’s a good idea; however most people don’t follow through and do it.

The #1 reason I hear why most people don’t register their trademark: the cost.

I’m not going to lie. Registering a trademark is expensive. The filing fee alone is at least $225. But what would suck more – paying for a trademark or having to rebrand because someone else registered it – especially if your plans include making money off your site?

I am almost through the process of registering the trademark for my blog, The Undeniable Ruth. It’s got me thinking that I could do small workshops with bloggers (3-5 participants) that includes an overview of trademarks and then I could lead them through the process of filling out the USPTO trademark application during the session, and then shepherd their applications through the rest of the process. Since it would be in a group setting, I could charge half the price of what I’d normally charge to submit an application for a client (only $499 instead of $1,000).

 

If you want to know more about the legalities of blogging, please watch my Q&A keynote from TechPhx or check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.  You can also contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

When “I’m Sorry” Isn’t Enough

Sorry Bout That! by Anne-Sophie Ofrim

Sorry Bout That! by Anne-Sophie Ofrim

I’ve encountered a significant number of people in my short legal career who were under the impression that they could absolve themselves from legal wrongdoings by simply apologizing. Unfortunately for them, that is often not the case.

When I first meet with a client, especially in situations where they suspect their intellectual property has been infringed, I start by asking, “How do you want this to end?” Their answer will inform me what I need to do to try to get their desired result (and if that result is available).

Sometimes my client simply wants the alleged infringer to stop using their work. That requires a cease and desist letter from me and the recipient to cease and refrain from using the material in question. An apology isn’t even required. However, if my client wants money, and my evaluation of their case shows that they are eligible to collect, “I’m sorry” will not be enough to resolve the situation.

In general, once lawyers are involved, “I’m sorry” is not going to be enough to fix the situation. If a person hires a lawyer, they are usually investing hundreds of dollars in an attempt to seek their preferred resolution. Very few people are willing to pay that amount just for an apology.

In my experience, when one side gets a lawyer the other side should get one too – if only for a consultation to understand the totality of the situation. They need to understand their options for responding to a cease and desist or a demand letter and the likely consequences of each potential course of action. In a perfect world lawyers talk to lawyers when there is a dispute. They know the law best and can often speak more candidly about the situation and achieving a resolution.

Every entrepreneur should watch Mike Montiero’s “F*ck You, Pay Me.” It’s an outstanding talk that shows how the legal system helps entrepreneurs protect their rights.

If you believe your rights have been violated or you’ve received a notice from someone’s lawyer accuses you of intellectual property infringement, breach of contract, or the like, contact a lawyer in your community who can analyze the situation and advise you on your options. If you want to chat more about this topic, you can contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.