What Makes an Effective Photography Contract Template

“Photographers” by Mark Fischer from Flickr (Creative Commons License)

One of the most common questions I get from photographers is, “Where can I get a good (free) contract template online?” I’m sorry to say that I have yet to come across such a resource that I’d feel comfortable recommending to anyone, but I can tell you what I look for when I review these documents.

Contract = Relationship Management Document

The best way I can define a contract is it’s a relationship management document. Its purpose is to put everyone involved on the same page about their responsibilities and how you will address certain problems if they occur. Contract manage expectations and allow you to hold each other accountable to the promises you made.

When I write a contract for a client, I try to walk through the interaction between the people involved during the relationship created by the contract and consider potential problems that might occur.  

Here’s something to note about contracts: Whichever side writes the contract, does so based on their best interests. The drafter is looking out for their interests, not yours. I write the same type of contract quite differently depending on which side is my client.

Photography Contract Review

When a client asks me to review a photography contract template, these are some of the provisions I expect to see in a quality contract:

Parties and Scope: A contract should be clear about the who, what, where, and when between the parties. A third party should be able to read the contract and understand who is party to the contract and what their responsibilities are.  

Consideration: “Consideration” is legal term meaning an exchange between the parties – what is each side giving and getting. In photography contracts, it’s usually trade for photos (TFP) or payment for images.

Deliverables: I would expect a photography contract to clearly state what the model/client is getting from the photographer as well as any limits on what the model/client can do with the images.

Copyright Notice: The contract should state who will own the copyright in the images – the photographer or the model/client. If the model/client is getting the copyright, I’d expect them to have to pay more than if they were just getting the images and a license to use them in certain ways.

Model Release: If you want to use the images for marketing purposes or to make money off the images in other ways, you will probably need a model release.

Problems and Worst-Case Scenarios: How are you going to deal with common issues like cancellations, no-shows, refund requests, and late payments? Those all should be addressed in your contract. What about rare but bad problems, like the files from the shoot are stolen, corrupted, or otherwise destroyed before you can make a back-up copy? You may want to address the worst-case scenarios in your contract too – usually in the “force majeure” section.

Dispute Resolution: If there is a problem between the parties, how will you resolve it – mediation? Arbitration? Litigation? Some other way? In what county and state will this occur? Which state law applies? In some states, you must specify that the non-prevailing party has to pay for the prevailing party’s attorney’s fees, otherwise the court won’t likely require this.

Boilerplate Terms:  There are some provisions that I include in nearly every contract I write, like waiver, severability, modification, and entire agreement. These are the provisions that can have a substantial impact on your relationship with the other party but are often left out when a lay person tries to write their own contract.

No One Size Fits All

A contract template is a starting point for a contract with a model/client. There may be times when you need to revise it to fit the needs of a project. Additionally, you will likely need different templates for portrait work and event photography because the issues the contract needs to address are different.

There’s nothing wrong with using a contract from the internet as a place to get ideas for contract terms and how to phrase provisions, but I’ve never seen a contract template that someone got for free online that I would approve as written.

I’m Working on a New Project, New Company

I created a new company (separate from my law practice) so I can offer online courses. My first one will be Lights, Camera, Lawsuit: The Legal Side of Professional Photography. If you want to stay in the loop about the course, discounts, and get weekly tips on how to be a more effective professional, please sign yourself up for this exclusive list. (This is completely separate from the CLF newsletter list.)

How to Legally Use User-Generated Content

https://www.flickr.com/photos/zoidberg72/16243539933
Selfie by dr_zoidberg from Flickr (Creative Commons License)

Here’s a question I get from companies and their marketers: What are the legal dos and don’ts for using user-generated content? These are situations where a company wants to use a photo, video, or text created by one of their fans, usually from a site like Instagram, Facebook, or Trip Advisor. Many companies merely want to approach the person through the platform where they found the content they want to use and ask for permission to use it. While this strategy is convenient, it may not be in the company’s best interest.

Using Content Within a Platform

It’s easiest when a company wants to share someone’s post within the social media platform – e.g., sharing someone’s Instagram photo on the company’s Instagram. Many social media sites build this option into the platform where you don’t even have to ask for permission to share someone’s post on another’s account.  

Of course, I’m a risk-adverse lawyer so I tell my clients to review the terms of service first to see what happens just in case it turns out the person who created the post you shared didn’t have the right to do so and now you have to deal with the fallout. Depending on the circumstances, I might contact the person to ask the person if they took the photo (which would indicate if they’re likely the copyright holder), try to verify that the original poster is complying with the platform’s rules

Using Content Across Different Platforms

Here’s where it gets a little more complicated. These are the situations where you want to take content from someone’s post on one platform and share it on a different social media site, your website, or another third-party platform. For this situation, I recommend you have a contract drafted by a lawyer. You could have them create a template for you if curating user-generated content is part of your marketing plan.

If I were creating a contract template for obtaining permission to use content created by a user or fan, I’d likely include terms such as:

  • The user owns the IP in the content: either they created it or they have permission to use it
  • The user has authority to grant the company permission to use the content
  • The user grants the company a perpetual, irrevocable, worldwide, sublicensable, paid-in-full, royalty-free license to the company to use the content for any purpose without needing the person’s consent or credit, including the creation of derivative works (or in the alternative, that the user grants the company a copyright assignment)
  • The user will reimburse the company’s legal fees and damages if it is accused of wrongdoing because the company used the user’s content

Such a contract would also include boilerplate verbiage, like a dispute resolution provision that states how the company and user will resolve disputes if one occurs.

Always Apply Reality

In any potential legal situation, be sure to apply reality. If a company wants to use a photo with two people in it, whoever posted the image may not be able to speak on behalf of the other person in the photo, and you may need release from identifiable people to avoid being accused of violating their right of publicity.

Additionally, it will likely take longer to get permission if you want to use images and other content across platforms. Be sure to build that into your timeline if your marketing plan involves using user-generated content.

There are also those who may question whether it’s worthwhile to have a lawyer create a contract for these circumstances. When there are no issues, a contract may seem superfluous; however, contracts are imperative in situations where there is a dispute and/or the parties forget the terms of their agreement. When you work with your lawyer to create you contract, make sure it has provisions that will apply to situations that are likely to occur as well as the worst-case scenarios.

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Legal Checklist to Protect Online Entrepreneurs

Labib Ittihadul from Flickr (Public Domain)

I was recently asked to create a list of what legal steps an entrepreneur should take if they operate solely online to protect their business. The person who asked appears to be primarily a YouTuber. Here’s the list I created for him: 

1. Consider having Two LLCs. One is a holding company for the intellectual property and licenses the IP to the other LLC to use it. This way if the holding company is sued for infringement, there are no assets to be collected if the holding company loses the lawsuit. We recommend this tactic for many businesses, not just online entrepreneurs.

2. Create an Operating Agreement if the LLC has more than One Owner.  Yes, this includes if you go into business with relatives, best friend, or romantic partner. This is a master document that lays out how the company will operate, each person’s obligations and responsibilities, and how the owners will address problems when they occur.

3. Move your Website to a Server Outside the U.S. The reason for doing is if there is ever a court order against the website, it will be more difficult to enforce if the website is house by a company outside the U.S. and not bound by U.S. law.

4. Register your Trademarks with the USPTO. So many legal issues could be minimized or avoided if every company properly registered their trademarks. This could include company names, product names, event names, logos, and slogans. When you have a registered trademark, you can stop a competitor from entering the marketplace while using a trademark that is confusingly similar to yours. If you have a strong international presence, it may be wise to register your trademarks in multiple countries.

5. Create a Copyright Strategy. Many professional content creators do guest posts for and collaborations with others and allow guest posts on their sites. It’s best to have contract templates for these situations that include clarification about who owns the copyright, what the other person gets, any limitations regarding the content, and an indemnification clause if appropriate.

Additionally, your copyright strategy should address when and how you can use others’ materials. You should have an understanding about fair use and where to look for materials that come with a license to modify the original as well as a license to use it for commercial purposes.

6. Consider Registering your Copyrights. You do not have to register your copyright to get your copyright rights, and you do not have to register everything you create; however, it’s beneficial to have the discussion about what you might want to register. You are required to register your copyright if you want to sue for infringement. Additionally, I frequently recommend registration to people who want to license or sell their copyrights.

7. Create an Action Plan for Addressing Suspected IP Infringement. Decide how you want to respond to suspected infringement before it occurs, so that you or your lawyer can be prepared to respond based on your desired outcome when it happens. Depending on how you want to respond, there may be things you need to do before the infringement occurs to best protect your rights.

8. Have a Contributor Contract Template. This is the contract you will use with people who contribute content to you, your site, your channel, or a social media account. It will state what rights each party has to use the content – most likely that they own it, and they grant you a license to use for certain purposes. It should also have an indemnification clause to protect you in the event you’re accused of violating another person’s IP rights or other legal wrong by using what the contributor provided to you.

9. Have an Influencer Contract Template. This is the contract to use when brands hire you so that the expectations on both sides are clear, and you state that you comply with FTC regulations. (You should probably have internal documents about FTC compliance as well.) Companies that hire influencers may have their own contracts that they want to use, but having your own template will help you analyze their contract to see how well it addresses your needs and concerns.

10. Create Website Terms and a Privacy Policy. These documents may need to comply with U.S. privacy laws, the Canadian Anti-Spam Legislation (CASL), and the General Data Protection Regulation (GDPR), and manage the expectations of visitors to your website. Many of the new privacy laws interfere with how many companies collect and use others’ personal information. These issues are complicated. Many people copy another content creator’s terms and privacy policy, but that could be a recipe for disaster if what you use is insufficient for your needs.

This may not be a complete or comprehensive list of legal steps to take to protect your business. It’s always best to consult a lawyer who understands the legal implications related to your business, preferably someone to specializes in business, intellectual property, and internet law. Hopefully this list gives you a place to start to evaluate your legal needs as a professional content creator or online entrepreneur.

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If You’re Going to “Wing It” as an Entrepreneur

“Yay!!” by Subharnab Majumdar from Flickr (Creative Commons License)

Plenty of entrepreneurs start out as a person or two, a business idea, and a shoestring budget. They know their craft but have limited or not experience starting or running a business. They don’t know what they don’t know – and that’s what gets them into trouble.

Many entrepreneurs employ the “we’ll learn as we go” approach to operating a business. Often times these are smart people, but if they get too focused on doing their business that they don’t take care of business within their operation, it can lead to costly mistakes: thousands of dollars in legal expenses and painful heartache to try to fix a problem that was completely avoidable.

Real-Life Facepalm Moments
I’ve had countless times where a business owner comes to me for help and I cringe and think, “We could have helped you avoid this if you had come to us sooner.” This is just a sample of my facepalm moments as a lawyer:

KAWS “At This Time” Sculpture by Guilhem Vellut from Flickr (Creative Commons License)

  • Owners who don’t create a business entity: put their personal assets at risk if the business gets sued;
  • LLC with multiple owners and no operating agreement: painful business “divorce” when things didn’t work out between owners;
  • Filing a trademark application with the USPTO that wasn’t trademarkable: the application might have had a chance if the description of the products and services was written more effectively;
  • Not filing a trademark and your competition files a trademark application that’s confusingly similar to or the same as yours: costly to make a claim against them and it may not be successful, which could force you to rebrand even though you were using it first;
  • Flawed customer contracts: doesn’t fully protect the company’s interests or address all likely contingencies;
  • Hiring a third-party contractor without a contract: if the person is hired to create an original work for the company, the company won’t own the copyright in what they hired the person to create and may have to pay to acquire it;
  • Working without a contract: so many problems. Whenever I get a call about a business deal gone bad, my first question is usually, “What does your contract say?” (Ideally, you want to be in a situation where, if the other side doesn’t perform as you agreed you can essentially respond with, “F*ck you, pay me.”)

If You’re Going to “Wing It”
If you are starting a business, my unsolicited advice is “Do your homework.” Invest the time to learn what goes into running your business and figure out what you don’t know. Reach out to established entrepreneurs to ask for their advice and avail yourself to resources in your community. In Arizona, we have dozens of these organizations like Arizona Small Business Association, Local First Arizona, and SCORE.

Even if you don’t think you can afford it, look into hiring a business and intellectual property lawyer for an hour. Bring them your ideas of what you want to do, and ask for their recommendations on how to make it happen. A good lawyer will respect your budget and tell you what you can do yourself and what you should hire a lawyer do for you. They can also recommendations resources to help you based on their experiences helping others.

If I’ve learned one thing as a lawyer it is that it’s easier and cheaper to prevent problems than to fix them.

True Story
Years ago, I worked with a new company where the owners hired me to create their operating agreement. I asked a lot of questions about things like intellectual property rights, compensation, and worst-case scenarios (e.g. disability of an owner) to create custom provisions for this document.

A few years later, the owners realized it wasn’t working out between then and decided to part ways. Their operating agreement dictated how they would address this situation, and they hired us again to revise the agreement to account for the exit of one of the owners. The process was professional, respectful, and cost-effective. I’m sure there were hurt feelings on both sides, but having this operating agreement helped the owners mange them and made for a smooth transition.

If you want more information about the legal dos and don’ts of starting and running a business, you can send me an email (Note: I can’t give advice to non-clients), and I maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. You can also connect with me on TwitterFacebookYouTube, or LinkedIn.

Model Release and Regret

“Subway Ballet” by J Stimp from Flickr (Creative Commons License)

Recently, I received an email from a photographer (not my client) who had a question about the validity of model releases. As I understood the situation, he hired a model (over age 18) to do a photoshoot at his studio. The model was photographed nude for at least part of the shoot. The model signed a model release and was paid for her modeling services.

After the photoshoot, the photographer censored some of the images to comply with Facebook’s rules and posted them online.  The model saw the images and was upset. The photographer asked me if the model had any authority to force him to take the images down.

The Rules of Model Releases
Model releases are standard in the photography world. In most cases, the photographer owns the copyright in their work from the moment the photo is created, not the person in the photo, and the model owns the right to publicize their own image.

The model release transfers the model’s right to publicity in those images to the photographer, which allows the photographer to use the images per the terms of the release. Usually, when I write a model release or a model release template, the model gives the photographer permission to use the images in any way and for any purpose, without restriction.

In general, once the model release is signed, the model’s given up their rights. If the model later regrets signing it, there may be nothing they can do to “unring that bell” unless the photographer is willing to negotiate another agreement – such as a copyright assignment where the model purchases the copyright rights in the images from the photographer.

Think Before You Sign
If you are a model, read the model release carefully. Never sign the release without reading and understanding it. Many of them allow for unfettered use by the photographer, including the right to license the images to others. Treat the images as if they are going to end up all over the internet, on billboards, on products or marketing campaigns you hate. Chances are, that’s not going to happen, but it could.

I write not just as a lawyer, but also a model myself. On a number of occasions, I have written and signed my own model release. Models may give up substantial rights when signing these documents, so it’s not a decision to make lightly.

What Could Invalidate a Model Release
Even if the model release was written by a lawyer and appears to valid on its face, there are situations where a model release might be invalid due to the circumstances surrounding the shoot:

  • The model was minor (Depending on your state, minors may not be able to sign contracts or they can withdraw their consent upon reaching the age of majority.)
  • The model was an adult but lacked the capacity to enter into a legally binding contract. (These people usually have an appointed guardian to sign for them.)
  • The model was intoxicated. (In general, intoxicated people can’t enter into valid contracts.)
  • The model was forced to sign the contract under duress. (You can’t get a valid contract if you use threats or force to get someone to sign it.)

There can also be instances where the photo in question was taken outside the scope of the model release and so the model release does not apply.

I get questions every day about photography, image rights, and copyright. If you are a photographer or model (or aspiring to be one), it’s imperative that you understand these issues. 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 check out the other posts and videos I’ve done on the legal side of photography. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Response to Star Trek Fan Film Guidelines

11/6/2015 - Taurid Meteor Shower - Joshua Tree , CA by Channone Arif from Flickr (Creative Commons License)

11/6/2015 – Taurid Meteor Shower – Joshua Tree , CA by Channone Arif from Flickr (Creative Commons License)

In light of the recent lawsuit between CBS and Paramount Pictures and a Star Trek fan film creator, CBS and Paramount released guidelines regarding fan-created films.

Previously, fan fiction movies were limited to camcorders and sets people created in their backyards, but now with computer animation and other technology, a fan could create an impressive work of fan fiction. You can see some earlier Trek fan fiction on the documentary Trekkies.

A friend asked me to weigh in on these guidelines. As a die-hard Star Trek fan, my legal interpretation may be slightly biased in favor of promoting fandom. Below are the guidelines in full with my comments in italics:

CBS and Paramount Pictures are big believers in reasonable fan fiction and fan creativity (I’m glad you support fan art/fiction. Star Trek is known for inviting fan-submitted scripts, but what do you mean by “reasonable?”), and, in particular, want amateur fan filmmakers to showcase their passion for Star Trek. Therefore, CBS and Paramount Pictures will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines. (It’s nice when people tell you how not to get sued.)

Guidelines for Avoiding Objections:
1. The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes. Is this because you don’t want fan fiction to compete with the TV series and movies? I wonder if someone is less likely to make significant money from a one-off video vs. a series. I wonder if the copyright holder would have objected if Melissa Hunter only made one Adult Wednesday Addams video instead of two seasons.)

2. The title of the fan production or any parts cannot include the name “Star Trek.” However, the title must contain a subtitle with the phrase: “A STAR TREK FAN PRODUCTION” in plain typeface. The fan production cannot use the term “official” in either its title or subtitle or in any marketing, promotions or social media for the fan production. (This makes sense from a trademark perspective. With brands creating content in various genres, it’s important to avoid confusing viewers about what is/is not made by the brand vs fans.)

3. The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. If non-Star Trek third party content is used, all necessary permissions for any third party content should be obtained in writing. (This makes sense because of copyright. It’s ok to copy ideas, but not the original work itself. This may be overstepping a little bit depending on how they define “recreations.”)

In my Starfleet uniform and Trill Make-up, 2000

In my Starfleet uniform and Trill Make-up, 2000

4. If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products. (I understand that they want to promote their partners and don’t want fans being misled. However, it makes more sense to require disclosure of sources of props and costumes. Some fans prefer to have a tailor custom-make uniforms instead of buying them from commercial sources. And thank you for calling them uniforms, not costumes – as a fan and Starfleet officer myself, I appreciate that.)

5. The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees. (What?! This seems overreaching and overly broad, especially considering that non-compete agreements are not permitted in California. Past and current employees can have non-disclosure agreements that limit their participation in other projects. Even a hobbyist has to pay for certain things – like a musician paying for studio time.)

6. The fan production must be non-commercial (This makes sense. Many artists approve of fan art as long as the person isn’t selling their work.):

  • CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease. (Thank you for understanding that hobbyists have expenses – despite your contradictory term above.)
  • The fan production must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue. (Ok – so you can’t submit your video to film festivals or run ads on it if you post on YouTube.)
  • The fan production cannot be distributed in a physical format such as DVD or Blu-ray. (This makes sense given current technology. They want to protect their intellectual property.)
  • The fan production cannot be used to derive advertising revenue including, but not limited to, through for example, the use of pre or post-roll advertising, click-through advertising banners, that is associated with the fan production. (Fair enough.)
  • No unlicensed Star Trek-related or fan production-related merchandise or services can be offered for sale or given away as premiums, perks or rewards or in connection with the fan production fundraising. (This makes sense in terms of protecting their intellectual property, and also makes it more challenging to use fundraising sites.)
  • The fan production cannot derive revenue by selling or licensing fan-created production sets, props or costumes. (Agreed. This makes sense.)

7. The fan production must be family friendly and suitable for public presentation. Videos must not include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content. The content of the fan production cannot violate any individual’s right of privacy. (I understand no porn, but no illegal activities? What are the bad guys supposed to do? Even Star Trek episodes and films depictions of tobacco and alcohol and the films contain the occasional swear word.)

8. The fan production must display the following disclaimer in the on-screen credits of the fan productions and on any marketing material including the fan production website or page hosting the fan production:

“Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use. No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.” (This makes sense, but the last sentence suggests that CBS and Paramount may be able to use fan-created content without obtaining the creators’ permission.)

Hanging with the Klingons, Grand Slam Star Trek Convention, 2001

Hanging with the Klingons, Grand Slam Star Trek Convention, 2001

9. Creators of fan productions must not seek to register their works, nor any elements of the works, under copyright or trademark law. (What about the fans’ rights to protect their original works of authorship and their brands that don’t infringe on CBS or Paramount’s rights?)

10. Fan productions cannot create or imply any association or endorsement by CBS or Paramount Pictures. (Agreed.)

CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion. These guidelines are not a license and do not constitute approval or authorization of any fan productions or a waiver of any rights that CBS or Paramount Pictures may have with respect to fan fiction created outside of these guidelines. (This makes sense as long as CBS and Paramount don’t change the rules and go after a fan film creator who reasonably complied with the guidelines as written at that time.)

I appreciate that CBS and Paramount Pictures’ desire to protect their intellectual property and that put out guidelines to further this goal, but I wish they would be more fan-friendly. Hopefully this is only an over-zealous reaction to the recent lawsuit and not a sign of future legal battles between Star Trek and their fans.

If you have questions about the legalities of fan art/fiction or you just want to geek out about Star Trek, 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.

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.

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.

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.