Legal Issues with Open Photoshoots

Parkwood Photography Studios, used with permission

Last week, I went to an open photoshoot/happy hour at Parkwood Studios. (They have a gorgeous space!) It’s a free monthly event for photographers and models of all skill levels and experience. There was an area set up with lights where anyone could model and shoot photos. The purpose is to give everyone an introductory experience working with a model in a studio environment. There was not a model release or TFP agreement for this event.

I went to this to network and to model. As a lawyer, I knew what I was getting into in regards to copyright and image rights. Of course, my analytical brain couldn’t stop strategizing what I’d do to integrate legal protection and information without disturbing the spirit of the event.

Who’s At Risk, Who’s Protected
There are three groups who should be interested in protecting themselves at an open shoot: the models, the photographers, and the studio. If I represented a studio that hosted an open shoot, I’d recommend having a release that states the studio is not responsible for anyone’s behavior. If there’s a dispute between a model and a photographer, that’s an issue to be resolved between the two of them.

One of my images from the open shoot. I look like a action hero.

Model Release and Copyright Notice
Even in the photography/modeling industry, a lot of people do not understand copyright and image rights. In an open photo shoot, the model and photographer exchange their time, talents, and the opportunity to practice their respective crafts. Unless stated otherwise in a written agreement, whomever took the photo owns the copyright.

The expectation at these events is that photographers and models exchange contact information so the photographer can share images with them, and that the models are allowed to put the images in their portfolios or share on social media. I suspect the studio would also want a license to the use any images taken at the event that they receive or that are posted to their social media to promote future events or the studio.

No Guarantees
The one of the complaint I heard from past events is models saying a photographers who took photos of them never sent any images. While that is poor form, the only way I can think to legally work around this is to have a “no guarantee” clause. There’s no guarantee the photographer will send the model photos and there’s no guarantee the photographer will get the shot they want.

Code of Conduct
Since this is an event for all experience levels – including fledglings – I recommend having a code of conduct that applies to everyone and the studio’s equipment. This would include basic things like “Always ask permission before touching a model,” “Don’t touch the lights or any equipment that’s not set up for use at this shoot,” “Give constructive feedback,” and “Be respectful – we’re all here to learn and have fun.” A lot of these are common sense, but it’s good to state the obvious for people for whom it might be their first time shooting in this type of environment.

For studios like Parkwood that host regular events, I suggest creating reusable poster-sized copies of the rules and release and put it on the door leading to the photoshoot area with a notice that says by entering the room, you agree to these expectations. For anyone who wants to shoot photos or model, put a clipboard with a dated copy of the agreement and a signature page where everyone must agree to the rules before they’re allowed to participate. This serves multiple purposes:

  • It gives photographers and models experience with reading and signing these agreements.
  • It creates expectations and helps avoid conflict for all involved.

I get questions every day about photography, image rights, and copyright. For anyone who works as a photographer or model, it’s imperative that you understand these topics. Many disputes can be avoided with well-written contracts and accurate information. I’m constantly doing work in this area, so if you want to keep up with what I’m doing or if you need help, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Getty Images Skirts $1B Lawsuit

Victory by Quinn Dombrowski from Flickr (Creative Commons License)

Victory by Quinn Dombrowski from Flickr (Creative Commons License)

Earlier this year, Getty Images was sued for $1 billion (yes, that’s billion) by photographer Carol Highsmith.

Getty Images had sent Highsmith a letter and a bill, claiming that she was using one of their images without buying the requisite license. (Getty’s known for doing this.) It turns out Getty sent her a bill for using an image that she had taken herself. In fact, Getty was selling licenses for thousands of her images. Highsmith responded by suing Getty for $1 billion for violating her rights under the Federal Copyright Act and state level laws related to licensing.

Highsmith donated over eighteen thousand images to the Library of Congress and made available to others to copy and display for free starting in 1988. Her claims were based on the fact that Getty used her work without attribution and added their own watermark. In my previous post about this case, you can see the math that shows that $1B is a reasonable amount to request for damages given the number of photos in question.

I previously wrote that this will be a fun case to watch, assuming it goes to trial and doesn’t end a settlement with a non-disclosure agreement. But alas, it wasn’t meant to be.

The Court granted Getty and the other Defendants’ Motion to Dismiss the federal claims, leaving on the state-level claims in the case. The Parties apparently came to an agreement amongst themselves, with a non-disclosure provision, and stipulated to having the remaining claims dismissed with prejudice (meaning Highsmith can’t file this lawsuit again for these claims). The dismissal also directs each side to be responsible for their own attorneys’ fees and costs.

Judge Rakoff wrote that he will release a memorandum explaining his ruling “in due course.” I expect it will be an interesting read.

I feel for Highsmith. Not only did she feel like her rights were violated, but the Court disagreed with her and told her she had to pay her attorneys’ fees. That’s the risk a person runs when they pursue a lawsuit – the Court could say you’re wrong, and you had to pay possibly thousands or tens of thousands of dollars to get that answer.

So what does this mean for future cases that are similar to this? It’s hard to say, though it appears that the fact that Highsmith made her work available for public use impacted her argument that she had rights in the images in question. I don’t expect this to effect artists who retain their copyright rights and make their work available for free through Creative Commons and similar means. (Thank you to all the artists who do this. I am forever grateful for your generosity.)

There are a lot of issues that come into play surrounding photography, image rights, and copyright. If you want to chat more about these topics, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Someone Posted a Photo of Me Online Without Consent

Photographer by Robert Cooke from Flickr (Creative Commons License)

Photographer by Robert Cooke from Flickr (Creative Commons License)

People come to this site almost every day with questions about whether someone can post their picture on the internet without obtaining consent. Some people even ask if it’s a crime or whether they can sue.

Sue for what? Which of your rights have been violated?

Of course, each situation must be evaluated on its merits. It’s possible that a person is concerned with an intimate photo, a photograph that was taken in a bathroom, or circumstances where they are being harassed. I’m not saying that there aren’t situations where a person’s rights may have been violated; however, the frequency with which I get these questions makes me wonder whether most of these people have a legitimate legal concern or merely hurt feelings.

No Expectation of Privacy in Public
Remember, in the U.S., there is no expectation of privacy in anything you do in public (exceptions of course for places like bathrooms, confessionals, etc.). So, if someone snaps a photo of you that is less than flattering, and they post it on the internet, as long as they are not violating your rights, there’s nothing you can do about it.

Maybe they took a photo of you not putting your shopping cart away, walking around with your skirt tucked into your underwear, or texting while driving. I think there are much more important things to talk about in general and definitely that are worth of documenting permanently online; however, it’s not illegal. Just like it is not illegal to be stupid, it is not illegal to post stupid things online. The internet is full of stupid.

So What Do You Do?
Well, if you truly believe that you’ve been the victim of a crime or that your rights have been violated, contact the police or buy an hour with a lawyer to review your situation. You may be in a situation where your legal rights have not been violated but the posting itself and violates the terms that apply to the site where it was published. In that case, reporting the image to the website administrators may be sufficient to get it removed.

If it is purely a situation where you are merely angry or upset, and the person won’t remove the image when asked, let it go. If you’re embarrassed by your behavior, don’t do it again. If you’re in a situation where the image shows up if someone Googles your name, you can try to bury it by manipulating the search algorithm. Hopefully it’s not a situation where you screwed up so badly that the image or situation is going to dominate the search results for years to come.

On the Flip Side
If you’re thinking about snapping a picture of someone, check your motives. If you’ve taken a picture and you have the impulse to share it online, double and triple check your motives. What are the benefits of sharing this image? Are you being vindictive? If the situation were reversed, would you want an image of you in a similar situation posted? What if the person in the picture was your parent or significant other – would you post it then?

The person in the photo isn’t the only one at risk of losing face. Do you want to be the jerk who not only took this photo, but also shared it? You could harm yourself as well as the other person.

What is socially inappropriate and what is illegal are often two drastically different standards. My rule of thumb for this situations is the same: Think before you act. Think before you post. If you want to talk more about internet privacy or social media law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Turnabout is Fair Play – Getty Sued for $1B for Copyright Violations

The Trees are Laughing at Us by daspunkt from Flickr (Creative Commons License)

The Trees are Laughing at Us by daspunkt from Flickr (Creative Commons License)

Getty Images is known for sending letters to people suspected of using their images without purchasing a license. These demand letters essentially say, “By using our image, you’ve agreed to pay for a license. Pay $XXX by this date or we will sue you.”

They may have started the trend of other photographers sending similar demand letters when people use their images without permission. (I’ve sent these type of letters and counseled clients who have received them – usually from pulling images from a Google Image search without verifying that they had permission to use it.)

Getty sent such a letter to documentary photographer Carol Highsmith, claiming that she was violating their terms for using an image. Here’s the catch – it was a photograph that Highsmith took herself and previously shared with the Library of Congress to allow free use of her work by the general public. Highsmith has shared tens of thousands of images with the public through the Library of Congress since 1988.

Highsmith learned that Getty is claiming copyright rights to thousands of her images work and demanding payment for licenses, often without attribution to her, and adding “false watermarks” to the images. She filed a $1,000,000,000 (that’s $1B with a “B”) copyright infringement lawsuit against these agencies for the “gross misuse” of 18,755 of her photographs.

That’s a lot of photographs.
I hope they have good insurance.

But $1B?! Really?!
Actually, yes. In this case, suing for $1B makes perfect sense.

A party who adds or removes a watermark from a photo to avoid detection for copyright infringement can be fined up to $25,000 per image in addition to other financial damages for copyright infringement.
$25,000/image x 18,755 images = $468,875,000

And if a party is found to have violated this law in the last three years – which Getty has – the complaining party can ask for triple the damages.
$468,875,000 x 3 = $1,406,625,000

Looking at this, it’s easy to see how easy it is for Highsmith to reasonably request over $1B in damages. She’s also requested a permanent injunction to prohibit future use of images by Getty and the other Defendants and attorneys’ fees.

You can read the full complaint filed by Highsmith against Getty in New York Federal Court here.
So far, Getty claims they will defend themselves “vigorously.”

This could be a fun case to watch. If this case doesn’t go to trial (and most cases don’t), I hope the settlement isn’t kept completely secret behind a non-disclosure agreement. One of the recommendations I make to anyone who is a professional creative is determine in advance how you want to respond when your work is used without your permission and plan accordingly. For many people, it’s not if their work is stolen, but when.

There are a lot of issues that come into play surrounding photography, image rights, and copyright. If you want to chat more about these topics, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

EDIT: The previous version of this post stated that Highsmith released her work to public domain. My apologies. Highsmith retains the copyright in her work, but allows others to freely use it through the Library of Congress.

Copyright Protection – Ideas vs Expression

Golden Gate Bridge by Julian Fong from Flickr (Creative Commons License)

Golden Gate Bridge by Julian Fong from Flickr (Creative Commons License)

A common mistake among professional creatives and amateur is understanding the scope of copyright protection, In the U.S., when you have a copyright, you have protection for your original expression, not the ideas contained within your work.

What Does Copyright Protect
Copyright applies when you have an “original work of authorship” that is “fixed in a tangible medium.” When you have a copyright, you can prevent others from using or claiming your work without permission, but it doesn’t give you a monopoly over the ideas contained within a work.

The image above is a photograph of the Golden Gate Bridge by Julian Fong. By taking this photo, he has the copyright in the image; however, he can’t stop others from taking picture of the bridge. If I went to San Francisco and determined where he was standing, I could take a photo that is nearly identical to his, but that is not a violation of his copyright. He can only stop me from claiming his work as my own or using his work without his permission. He can’t stop me from creating my own picture. His rights only extend to his exact expression, not the idea of capturing an image of this bridge on a sunny day.

The same rules that apply to images also apply to written material. This is why multiple people can write about the same topic and even express similar sentiments without risk of violating the other’s copyright rights. As long as one writer is not deliberating copying the other’s work word-for-word and claiming it as their own, it’s possible for two people to create similar works without violating the other’s rights. It is permissible under the concept of fair use to quote another writer and provide your own thoughts and others’ perspectives about the issue.

What Is Not Protected
Copyright only protects original expression, it does not protect facts, ideas, methods, titles, names, short phrases, or recipes. Copyright can protect and original arrangement of facts, but not when it’s an unoriginal arrangement. That’s why a cookbook may be protected by copyright (original arrangement of recipes and images) but a phonebook is not.

I regularly receive questions from people about what is the scope of copyright protection and whether contributing to a project (such as being the subject of a photo) gives them rights in the resulting product. Copyright, like many areas of law, has few definite answers. Each situation must be evaluated based on its merits.

If you want to talk with me about copyright law and protecting your rights, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

Stolen Images: How to Respond if Someone Uses your Photo Without Permission

Caught in the Act by *sax from Flickr (Creative Commons License)

Caught in the Act by *sax from Flickr (Creative Commons License)

What should you do if you discover that someone is using a photo you took without your permission? As the person who took the photo, you are likely the copyright owner, which gives you the right to control where and how your work is copied, distributed, displayed, and used in other works. You may have grounds to sue the person for copyright infringement, but that’s often not a practical course of action, especially if your damages are minimal or the alleged infringer doesn’t have means to pay you the damages.

In many cases, the owner simply wants the person to stop using their image, so what do you do? If your goal is removal of the photo and cessation of further uses, this is one way to proceed.

1. Dial Direct: Contact the suspected infringer directly, inform him/her of your concerns, and request that they remove the image. Many people still believe that they can use any image they find on the internet as long as they give an attribution and a link to the original.

Look for contact information on their website if that’s where the alleged infringement is occurring. If that information is not available, it might be listed on WhoIs from when the person registered the domain.

2. Send a DMCA Takedown Notice: If you can’t contact the person or they don’t respond to your request to remove your image, you can send a DMCA takedown notice to the company that hosts their content. If the image is on a person’s website, be aware that the company that registered the domain is not necessarily the same company that hosts the site. Before I send a DMCA takedown notice, I usually contact the hosting company and verify that they host the site in question. I also ask if there’s a specific email address to use to send DMCA notices or if they have a form on their site for submitting them.

The downside of sending a DMCA takedown notice is that it may result in the image being removed, but only for a short time. The infringer can have the content restored to their site merely by sending a counter takedown notice.

3. Consider the Court or the Court of Public Opinion: If sending a DMCA takedown notice is not effective, you may have to sue the person to get the image removed from their site or account. You may also consider turning to the court of public opinion. If you pursue the latter option, be careful about what you say. You don’t want this person to have grounds to sue you for defamation, false light, or a similar claim.

If you’re interested in seeing an epic copyright battle that was fought in the courts and the public eye, I recommend The Oatmeal vs. FunnyJunk. Be sure to read this update, this one, and this one too.

Of course if you’re in this type of situation, it’s best to consult a copyright lawyer to determine the best course of action based on your specific circumstances. If you want to talk with me about copyright issues, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

Using Others’ Content – Legal Dos & Don’ts

Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)

Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)

I’ve received a lot of questions lately about how and when it is permissible to use other’s content without committing copyright infringement. This aspect of the copyright law is called fair use, and it’s a murky gray area. Each situation needs to be evaluated based on its merits as there few black-and-white rules regarding the legal use of others’ content.

Sharing a Post
If you like a post, you may want to share it with others. The legal way to do this is share a link to the original post with your audience. Sharing a link is the digital equivalent of pointing at something. It doesn’t create a copy of it. You will likely be accused of copyright infringement if you copy/paste the content from the original site to your website. Even if you have good intentions, you’re still interfering with the copyright holder’s right to control where their work is copied and distributed.

If you want to share a copy of a post, ask for permission. I get 2-3 requests a year from people who want to print and share copies of a post I wrote for training purposes or as part of a seminar. I’ve always allowed this as long as they include an attribution so the audience knows where it came from.

Commenting on a Post
If you want to quote someone in a post and add your own commentary to their thoughts, that is generally permissible. This is one of the things fair use is meant to protect. It’s best to quote the original post, provide an attribution and a link to the site, and then add your thoughts about it. By adding commentary, you’re more likely to be contributing to the conversation rather than committing copyright infringement.

One of the questions I was recently asked was whether they could write about the same topic as someone else. There’s no copyright protection for facts or ideas, so as long as you’re not copying someone’s working and claiming it as your own, you can write about the ideas as another writer, even without as attribution – unless you quote them.

Using an Image
This was an interesting question – someone asked when they write a post that comments on another person’s work, can they use the image from the original article. This raises a “red flag” for me because depending on the circumstances, it could be permissible or copyright infringement. If the article is about the image itself, then using the image is likely protected by fair use.

Otherwise using the photo from another’s post may be copyright infringement, especially if readers are seeking the original post and accepting yours as a substitute. I could see readers being confused because the image on the two posts are identical. If the image on the original post is not as essential aspect of the story, I recommend using a different image. I usually get my images from Creative Commons that come with the license to modify and commercialize the original.

Copyright and fair use are complicated issues that permeate the blogosphere. Before using another’s content, consider whether what you’re doing is likely to be legal and whether it might be best to request permission before using another’s content. If you have any question regarding using others’ content and fair use, please contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. If you want access to my exclusive content that’s shared only with my mailing list, please subscribe to the firm’s newsletter.

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.

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.

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.