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Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


Second in a series on laws affecting photographers and the llamas they work with.

I'm an MM photographer and a licensed Texas attorney. For liability reasons I won't be giving any legal advice here - just some basic legal principles. Consult an attorney if you have any specific legal situations of your own. Remember that laws vary from state to state and country to country, and federal law may trump state/local laws.  


What is a copyright?  Literally it is the right to copy (or use), or to authorize someone else to copy (or use), an original creative work.

What can be copyrighted? Any original creative work. For MM's: it's the digital images, prints, and edited/Photoshopped images.

When is the copyright created? At the moment the work is created. For MM's, the moment the shutter snaps, or the moment the edit/manipulation is completed.

Do I have to put that little circle c thing on my images? No, all you have to show is that it's your original image. However it's good practice to do so.

Do I have to file my images with the US Copyright Office? No, this is not required. And you can always file at a later date if you learn that the image is going to be published.

Who owns the copyright? The person who made the original creative work. For MM's, it's the photog who took the pic, printed it or edited/manipulated it (but not a person hired to edit/manipulate it).

Can a copyright be given away? Yes, but it must be in writing.

The image is on Google Images, can't I download it - isn't it in the "public domain"? No, you need the photog's permission.

I just bought a print, did I buy the copyright too? No, unless the photog gave it to you in writing.

What if someone uses a copyrighted image without permission? That violates the copyright law. The photog can send you a letter asking you to stop, and can sue you if you don't. But remember that there are several exceptions that would permit publication without permission.

I'm the llama in the image, can't I use the image on my website? Not without the photog's permission. You need what's called a use, or licensing agreement.

What if I give the photog credit on my website, can I use the images then? No, you still need permission.

But I paid the photog for the shoot (or it was a TF/TFCD shoot), doesn't that mean I can use the images? Technically no, unless the photog gives you permission. You paid (or traded) for the photog's time and services, not for his created works. However in my opinion this a bit of a gray area, the llama could argue that there was a verbal use agreement. The llama might also claim that there is an implied license based on the pre-shoot communications.

Does the permission need to be in writing? No, but it's much safer to get a written agreement that states what the llama can use the image for, and how long the llama can use the image.

Can the photog take back his permission? Yes, unless he gave permission in writing and it stated that the llama could use the image for a specific period of time. If it was a verbal permission, the photog can rescind the permission at any time. However, the photog might be facing a lawsuit if the image has been tendered to a third party who relied on the original permission.
Dec 28 12 07:57 am  Link  Quote 
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Photographer
GPS Studio Services
Posts: 35,140
San Francisco, California, US


John, thank you for the post but I am not sure that I agree with a number of things you are saying.

1.  You are suggesting that when a model does TF she is contracting for the photographer's time, nothing more.  I am having a hard time with that.  In my view, the TF agreement is whatever the TF agreement is.  If a model agrees to pose in exchange for images she can use in her portfolio and self-promotion, that is contract.  In that case, she is posing in exchange for both the images and the license.   So, I understand your suggestion that they could argue that, I see it as unambiguous. That having been said, a lot of these agreements are "loosey-goosey."  Nobody really spells out what each party is to get.  If I look at that scenario, I tend to agree, to some extent with what you are saying, but it seems clear to me that the use of images is implied within any TF agreement.

2.  You say that the photographer can revoke the license at any time.  I think there are situations where this is true but I think you are stating that too broadly.  There is extensive caselaw which says you cannot revoke a license if it has been granted through the tender of consideration.  If a court were to find that a TF arrangement included, in its terms, the grant of license, then I don't see how it would be revokable, absent a breach of contract by the model.  That having been said, to suggest that a photographer can revoke a license at any time would seem overly broad.  Of course, in most states, most contracts are rescindible.  I suppose that a photographer might be able to rescind the agreement, but only if he made the model whole.  It could also not be retroactive, i.e. the model couldn't be required to "unring the bell."

3.  As to registration, I don't understand why you recommend against  Every IP attorney that has come to this site, as well as the major bloggers, such as Carolyn Wright, have all recommended registration.  Ed Greenberg recently recommended not even giving an image to a model until an image is registered since an unpublished image doesn't gain the benefits of statutory damages if infringement comes before registration.  I am having a hard time understanding why you are suggesting only to register images that are to be used by major publications.  As a matter of practice, we find infringement here all the time.  Every month someone here writes about how a publication or website has stolen their work.  Although we have the DMCA, registration is the "big stick" to reduce infringement.

4.  I also don't understand why you refer to agreements as "verbal" rather than "oral."  Verbal simply means that it is "with words" rather than implied by contract.  "oral" means it has been spoken.  A verbal agreement can be either oral or written.    I am guessing that was just a slip of your fingers when typing your post but readers here should know the difference between an oral agreement and a verbal one.

Anyhow, as an attorney you will see things differently than other attorneys.  That is what attorneys do.  It is important though to point out that what you are suggesting in your post contradicts most of what Ed Greenberg, Carolyn Wright and many other IP attorneys have been suggesting to us for a long time.

Your post is good though because it points out, quite clearly, that attorneys don't all agree on these things.  I have said it before, the law is never black and white nor to all attorneys have the same views and strategies.  Your post is a good example.
Dec 28 12 09:14 am  Link  Quote 
Photographer
D S P
Posts: 510
Portland, Oregon, US


We register everything. It's paid off by us being able to recover money from infringers. Nothing personal, it's only business.
Dec 28 12 09:23 am  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


ei Total Productions wrote:
John, thank you for the post but I am not sure that I agree with a number of things you are saying.

1.  You are suggesting that when a model does TF she is contracting for the photographer's time, nothing more.  I am having a hard time with that.  In my view, the TF agreement is whatever the TF agreement is.  If a model agrees to pose in exchange for images she can use in her portfolio and self-promotion, that is contract.  In that case, she is posing in exchange for both the images and the license.   So, I understand your suggestion that they could argue that, I see it as unambiguous. That having been said, a lot of these agreements are "loosey-goosey."  Nobody really spells out what each party is to get.  If I look at that scenario, I tend to agree, to some extent with what you are saying, but it seems clear to me that the use of images is implied within any TF agreement.

2.  You say that the photographer can revoke the license at any time.  I think there are situations where this is true but I think you are stating that too broadly.  There is extensive caselaw which says you cannot revoke a license if it has been granted through the tender of consideration.  If a court were to find that a TF arrangement included, in its terms, the grant of license, then I don't see how it would be revokable, absent a breach of contract by the model.  That having been said, to suggest that a photographer can revoke a license at any time would seem overly broad.  Of course, in most states, most contracts are rescindible.  I suppose that a photographer might be able to rescind the agreement, but only if he made the model whole.  It could also not be retroactive, i.e. the model couldn't be required to "unring the bell."

3.  As to registration, I don't understand why you recommend against  Every IP attorney that has come to this site, as well as the major bloggers, such as Carolyn Wright, have all recommended registration.  Ed Greenberg recently recommended not even giving an image to a model until an image is registered since an unpublished image doesn't gain the benefits of statutory damages if infringement comes before registration.  I am having a hard time understanding why you are suggesting only to register images that are to be used by major publications.  As a matter of practice, we find infringement here all the time.  Every month someone here writes about how a publication or website has stolen their work.  Although we have the DMCA, registration is the "big stick" to reduce infringement.

4.  I also don't understand why you refer to agreements as "verbal" rather than "oral."  Verbal simply means that it is "with words" rather than implied by contract.  "oral" means it has been spoken.  A verbal agreement can be either oral or written.    I am guessing that was just a slip of your fingers when typing your post but readers here should know the difference between an oral agreement and a verbal one.

Anyhow, as an attorney you will see things differently than other attorneys.  That is what attorneys do.  It is important though to point out that what you are suggesting in your post contradicts most of what Ed Greenberg, Carolyn Wright and many other IP attorneys have been suggesting to us for a long time.

Your post is good though because it points out, quite clearly, that attorneys don't all agree on these things.  I have said it before, the law is never black and white nor to all attorneys have the same views and strategies.  Your post is a good example.

1. I agree with your first numbered paragraph. Best practice is not to leave things loosy-goosy, use a written agreement.

2. I agree with your second paragraph, I stand corrected. Probably meant to address situations where the model assumed she could use the images without an agreement of any kind. In that case the photog could ask her to stop using them at any time.

3. On your third point, I don't recommend AGAINST filing, just think it's pointless for most amateur/parttime photogs. But file away if you wish. It's only $35 per filing. You have to file before you can sue, but you can always file after the violation is discovered (although you may lose certain statutory benefits).

4. I use verbal and oral interchangeably. Remember I'm writing for 18 year old models, not the Supreme Court.

Dec 28 12 10:04 am  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 35,140
San Francisco, California, US


John Peralta wrote:
1. I agree with your first numbered paragraph. Best practice is not to leave things loosy-goosy, use a written agreement.

2. I agree with your second paragraph, I stand corrected. Probably meant to address situations where the model assumed she could use the images without an agreement of any kind. In that case the photog could ask her to stop using them at any time.

3. On your third point, I don't recommend AGAINST filing, just think it's pointless for most amateur/parttime photogs. But file away if you wish. It's only $35 per filing. You have to file before you can sue, but you can always file after the violation is discovered (although you may lose certain statutory benefits).

4. I use verbal and oral interchangeably. Remember I'm writing for 18 year old models, not the Supreme Court.

I think I like you John.  Welcome to the MM forums.

For the record, I happen to agree with you.  It is a rare thing where anybody here is going to litigate copyright infringement.  People here talk about lawsuits as if you do them at the drop of a hat.  So, we are not far off on what your position is. 

We have had a couple of high profile infringements turn up here.  Realistically though, few here will ever end up in litigation for infrigement.

Dec 28 12 11:07 am  Link  Quote 
Photographer
Rik Austin
Posts: 10,765
Austin, Texas, US


Good thread and responses.  Thanks.
Dec 28 12 11:14 am  Link  Quote 
Makeup Artist
ArtistryImage
Posts: 2,716
Washington, District of Columbia, US


ei Total Productions wrote:
3.  As to registration, I don't understand why you recommend against  Every IP attorney that has come to this site, as well as the major bloggers, such as Carolyn Wright, have all recommended registration.  Ed Greenberg recently recommended not even giving an image to a model until an image is registered since an unpublished image doesn't gain the benefits of statutory damages if infringement comes before registration.  I am having a hard time understanding why you are suggesting only to register images that are to be used by major publications.  As a matter of practice, we find infringement here all the time.  Every month someone here writes about how a publication or website has stolen their work.  Although we have the DMCA, registration is the "big stick" to reduce infringement.

I would concur with ei Total Productions inference here... this is considered generally accepted best practice by the ASMP please consider reviewing their information here

Want a second legal oppinion look here

This is agreeably an important issue for those who's revenue stream depends upon their intellectual property rights...  thank you so much John Peralta for giving voice to this dynamic legal matter... your diligence is greatly appreciate smile

Dec 28 12 11:34 am  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


Thanks ei, Rik and Artistry.  : )
Dec 28 12 12:35 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


John Peralta wrote:

1. I agree with your first numbered paragraph. Best practice is not to leave things loosy-goosy, use a written agreement.

2. I agree with your second paragraph, I stand corrected. Probably meant to address situations where the model assumed she could use the images without an agreement of any kind. In that case the photog could ask her to stop using them at any time.

3. On your third point, I don't recommend AGAINST filing, just think it's pointless for most amateur/parttime photogs. But file away if you wish. It's only $35 per filing. You have to file before you can sue, but you can always file after the violation is discovered (although you may lose certain statutory benefits).

4. I use verbal and oral interchangeably. Remember I'm writing for 18 year old models, not the Supreme Court.

Could you explain what statutory damages are and when they are used.

Personally, I believe that the prevalence of stock photography has guaranteed that they will never be applied in a copyright violation suit for photographs.

Maybe also explain the difference between statutory and punitive damages.

Dec 28 12 11:03 pm  Link  Quote 
Photographer
Majid Muhassan
Posts: 2
Charlotte, North Carolina, US


What are you using as a reference for the copyright guidelines.  Is it possible to get a post to the referenced material.  I'm asking because I keep hearing this argument, but no one has actually pointed to a source.
Mar 07 13 04:57 pm  Link  Quote 
Photographer
Sophistocles
Posts: 21,320
Seattle, Washington, US


Where did the OP go?
Mar 08 13 12:20 am  Link  Quote 
Model
JoJo
Contest Queen
Posts: 24,803
Clearwater, Florida, US


Sophistocles wrote:
Where did the OP go?

The OP is just taking a break - he is still a member and will be back... hopefully with another informative post.

Mar 08 13 12:35 am  Link  Quote 
Model
JoJo
Contest Queen
Posts: 24,803
Clearwater, Florida, US


Majid Muhassan wrote:
What are you using as a reference for the copyright guidelines.  Is it possible to get a post to the referenced material.  I'm asking because I keep hearing this argument, but no one has actually pointed to a source.

The OP is quite knowledgeable of law.

Faces2Die4 Photography wrote:
I'm an MM photographer and a licensed Texas attorney. For liability reasons I won't be giving any legal advice here - just some basic legal principles. Consult an attorney if you have any specific legal situations of your own. Remember that laws vary from state to state and country to country, and federal law may trump state/local laws.  

The practice of Law is the interpretation of the written statutes and the presentation and argument of that interpretation.

It is always best to consult with an attorney with a solid understanding of the area of law (such as IP law) you need assistance with.

Remember, "a person who represents himself in court has a fool for a client"

Mar 08 13 12:55 am  Link  Quote 
Photographer
Rob Photosby
Posts: 2,333
Brisbane, Queensland, Australia


GPS Studio Services wrote:
A verbal agreement can be either oral or written.

A verbal agreement cannot be written, because that is what a written agreement is.

Mar 08 13 04:00 am  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 35,140
San Francisco, California, US


GPS Studio Services wrote:
A verbal agreement can be either oral or written.
natural beauties of qld wrote:
A verbal agreement cannot be written, because that is what a written agreement is.

Sorry, you've got it wrong.  In the law, the term "verbal agreement" means it is a contract that is expressed in words.  It can be oral or written.  An oral contract is one that is spoken. 

The point though is that the term "verbal contract" is used in the law to distinguish between an "implied contract."   An "implied contract" is one that can be inferred from the relationship, conduct or circumstances of a transaction.

People try to use the words "oral" and "verbal" interchangeably but they have two, very distinct legal meanings.  The OP, an attorney, has acknowledged that his use of the word "verbal" although understood by people here, was not necessarily written correctly, just easy for people here to understand.   From a legal standpoint, when you are trying to state that the contract has been spoken, rather than written, it is very important to refer to it as an "oral" contract.  While people here might understand what you are trying to say, a court might interpret it differently.

http://en.wikipedia.org/wiki/Verbal_contract wrote:
A verbal contract is any contract which is expressed in words (written or spoken)
http://www.expertlaw.com/library/business/contract_law.html wrote:
Please note that, although sometimes an oral contract is referred to as a "verbal contract", the term "oral" means "spoken" while the term "verbal" can also mean" in words". Under that definition, all contracts are technically "verbal". If you mean to refer to a contract that is not written, although most people will recognize what you mean by "verbal contract", for maximum clarity it is helpful to refer to it as an "oral contract".

Mar 08 13 06:57 am  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 35,140
San Francisco, California, US


Majid Muhassan wrote:
What are you using as a reference for the copyright guidelines.  Is it possible to get a post to the referenced material.  I'm asking because I keep hearing this argument, but no one has actually pointed to a source.

Which point are you specifically asking about?

Mar 08 13 07:03 am  Link  Quote 
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