bert_krages1

<p>The link should be <a href="http://www.krages.com/ThePhotographersRight.pdf">The Photographer's Right</a>.</p>

<p>I created a downloadable document in 2003 after another member posted about his experience of having his film seized by some company thugs after photographing an oil refinery (<a href="/bboard/q-and-a-fetch-msg?msg_id=004Qz5">I got my film confiscated. Did I break a law?</a>). It has been a popular document, with over a million downloads.</p> <p>I recently updated the document in case anyone is interested. You can download it directly at <a href="/bboard/www.krages.com/ThePhotographersRight.pd">The Photographer's Right</a>.</p> <p> </p>

<p>In the US, if all that is visible is the exterior, then generally there is no problem with taking these kinds of photographs. If the interior is visible, the law gets a little more complicated. But in general, the occupants have a responsibility to shield themselves from public view if they want their privacy. However, the voyeurism and privacy laws in some jurisdictions could be construed against the photographer in such situations. An example of a case where the court found that the photographer was legally entitled to take photos of occupants inside their homes can be found at http://tinyurl.com/onhsdxw.</p>

<p>Ok. My understanding is the school obtained the licenses for the performances and was concerned that the music companies would no longer license them rights to use the music in future performances. </p>

<p>Jeff, with all due respect, why would the school be liable if someone makes a video of the band and then posts it online without authorization by the school? I understand that music entails various kinds of rights, but a licensee is not liable for another person's unauthorized use.</p>

<p>The school and the parents are separate entities and neither is responsible for the acts of the other. Although the school cannot authorize the parents to post videos, it is not responsible for any infringement should a parent do so. Only the parent would be responsible. As an analogy, suppose you grant a license for someone to use a photo on their website but do not allow them to sublicense the photo. If a thief copies the photo off that person's website, and uses it on another website, the thief would be liable to you for that infringement but the person who originally licensed the photo would not be liable.</p>

<p>The Ninth Circuit recently ruled that the use of music performed by Prince in a 29-second home video of her two young children dancing required the copyright owner to consider whether the work was subject to fair use prior to filing a DMCA take-down notice. (<cite >cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf</cite>). In any case, I don't see how the school could be liable for a parent's posting of a video of a band. If anything, the record company might come after the parent or request a take down, but it is not going to deprive itself of revenue by refusing to license to the school.</p>

<p>I don't know why the statute was limited to areas outside city boundaries but it was primarily intended to protect ranchers. Perhaps city governments did not want any legislative impediments to the enforcement of environmental and other laws.</p>

<p>Charles,</p> <p>You are correct, the statute specifies two separate crimes: (1) entering a property to collect data and (2) actually collecting data. However, the punishment appears to be the same for both. </p>

<p>It is a poorly drafted and vague bill that could be applied against photographers in some circumstances. I think it is unconstitutional, but it could be upheld by courts for a period of time, much in the way that the Texas Court of Criminal Appeals did not toss out Texas Penal Code § 21.15 until last year (that statue criminalized photography with a dirty mind). The prosecution that led to the demise of the Texas statute was of a person who took photographs of women, some of whom were wearing swimsuits. <br /><br />The basic elements of the crime are:<br />1. entry onto open land (i.e., land that is outside city boundaries);<br />2. for the purpose of collecting “resource data” (including the photographing of open land) for submission to a state or federal agency; and <br />3. the person collecting the “resource data” is either not the owner or does not have the owner’s permission, or other legal authorization to enter or access the land. <br /><br />The ambiguities include:<br />1. whether “to enter” means a physical entry or whether it applies to an entry over airspace or the monitoring of the property by an offsite recording device (e.g., a camera, video recorder, or sound recorder);<br />2. whether the open land on which the information is collected has to be same as the open land on which the collection is be done (i.e, taking a photograph of an adjoining parcel);<br />3. whether it applies to public lands used for grazing, etc.;<br />4. the scope of what is meant by “resource data” (e.g., would operating a meth lab or harboring stolen property be considered “land use” under the statute?); <br />5. whether it applies to “resource data” collected from federal land;<br />6. what does “to access” mean?<br /><br />There are a lot of scenarios in which the statute could be applied in ways not intended by the legislature, which was to impede the collection of environmental data. So if someone is rafting on a river and photographs a cow defecating on the bank, and then submits the image to the U.S. Copyright Office for registration, can they be convicted? I can’t say it wouldn’t happen because photographers have been arrested or harassed for violating other stupid laws.<br /><br />The statute also has a provision that excludes the collected resource data from being admissible in court. So, in theory, if a victim of a human trafficking operation that takes place outside of city limits manages to escape, and then shows photos of the traffickers and their victims to a state or federal agency, then the sex traffickers would be entitled to exclude the photograph from evidence if they were put on trial. This obviously does not make sense.<br /><br />It would have been better for the Wyoming Senate to acknowledge what many people have known for a long time, that cattle make manure. Now the world knows that the Wyoming Senate can make it too.</p>

<p>Actually, the copyright and DMCA remedies can be an effective way to fight against abusive uses of photographs. The problem for many people portrayed in such photographs is that they were not the photographer, and thus do not hold the copyright. Of course, the photographer could assign the copyright to the subject or agree to file the complaint on behalf of the subject.<br> I frequently advise photographers to register the copyright to their images because timely registration (i.e., generally before the infringement) makes it more feasible to enforce copyrights. For the same reason, I strongly encourage that copyright information be put in the metadata, because if an infringer removes the information, they have likely violated the DMCA. One of he benefits of registering a copyright is that it puts the photographer in a better position to help someone they have photographed if the image is later copied by someone else in a manner that the person finds offensive. </p>

<p>If you are having your work taken by commercial and academic entities, you should really consider enforcing your copyrights. The key to enforcement is to register the images prior to the infringement. In addition, have the code to your website modified to prevent hotlinking. Generally speaking, if the images are timely registered, you should be able to recover more than your expenses if you retain an attorney to contact the infringer and negotiate a settlement. The key to making this work is to be reasonable with respect to who you pursue and not to expect that every infringement will be a gold mine.</p>

<p>The highest criminal law court in Texas has finally struck down Texas Penal Code 21.15 (<a href="http://bit.ly/YT4igN">http://bit.ly/YT4igN</a>).This is the law that criminalizes photographing someone in public without their consent for the purpose of sexual gratification. In the second edition of my book on photography law, which came out in 2006, I characterized this statute as the worst drafted privacy law in the United States. I was sure back then that it would soon be repealed or ruled unconstitutional. Instead, photographers were arrested for things such as photographing people at an Octoberfest event or girls at a dance competition. People were convicted and sent to prison for activities such as photographing women in swim suits at a public pool. One man was convicted of photographing fully dressed "females walking down the sidewalk" but had his conviction reversed on the grounds that the State did not prove he made the images. <br /><br /> Ironically, it is not difficult to draft a statute that passes constitutional muster and protects privacy in a reasonable way. Many states have done so. Unfortunately, Texas tried to prohibit "photography with a dirty mind" instead of prohibiting unreasonable invasions of privacy irrespective of whether the mind was dirty or not. <br /><br /> <br /> </p>