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photoattorney

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    Copyright rules?

    in Business of Photography

    Posted

    Including another copyrighted work in your photo is a violation of that copyright owner's copyrights unless it falls under fair use. Fair use looks at four factors: <br><br>

     

    - The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or for educational purposes;<br>

    - The nature of the copyrighted work;

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    - The amount and substantiality of the copyrighted material that is used; and

    <br>- The effect of the use upon the potential market for or value of the copyrighted work.<br><br>

     

    Courts look at all four factors, so even if the use is editorial, it still may infringe on the copyright.<br><br>

    Whether the photo violates any trademarks in the photo depends on whether it infringes or diluted. Trademarks are infringed when there is a "likelihood of confusion" as to the source, affiliation, or sponsorship of the goods or services. The evidence often used in such cases is an extensive survey of consumers as to whether they are confused about the source of the product. Trademarks are diluted either by blurring or tarnishment. Dilution by blurring occurs when "an association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark." Dilution by tarnishment happens when the mark is used in an unsavory or unwholesome manner or it is used in connection with an inferior trademark. <br><br>

     

    In sum, it's a judgment call until a court decides.

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    Do I have the right?

    in Business of Photography

    Posted

    You may use photographs you have taken for editorial purposes without a model release. You need a model release to use a person's likeness in a photo for advertising, endorsement purposes, and trade. The person in the photo has to sign the model release unless the person is a minor or incapacitated. Then you need the parent/guardian's permission. A bride or groom can't give permission for someone else unless the parent or guardian for that person.

    copyright problem - urgent

    in Business of Photography

    Posted

    <br />A photographer owns the copyright for images that they create, unless the creation of those images falls into the "work-for-hire" category. A work-for-hire relationship is created in two situations: (1) the photographer is an employee hired to photograph for the employer - an example would be a photojournalist who is an employee of a newspaper; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.

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    Shots of Family---Get Model Release?

    in Business of Photography

    Posted

    Granting permission to use someone's name or likeness for advertisments, endorsements or trade (also known as the right of publicity) does not have to be in writing but it gives you better protection if a dispute later arises. It doesn't hurt to get a model release from immediate family members but it may help.

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    Year on copyright stamp

    in Business of Photography

    Posted

    The copyright notice had to be affixed work published prior to March 1, 1989, or it immediately lost copyright protection. (Copyright protection has been restored for some foreign works even if they were published without notice before 1989.) That law has been changed; work published after 1989 does not need a copyright notice to maintain its copyright protection. It is, however, a good idea to use a copyright notice when displayed or offered in any manner.

    <br /><br />According to copyright law, the proper copyright "notice" has three parts: the first part is the letter "c" in a circle (the letter "r" in a circle is for a trademark registered with the U.S. Trademark Office, not for a copyright), the word "Copyright," or its abbreviation, "Copr." Some people use a "c" within parentheses like this: ©, but it has not been designated to be part of the official copyright notice. The second part notes the year when the work was first published (not taken). The third required part of a copyright notice is the name of the copyright owner. The final form looks like this: Copyright 2007 Carolyn E. Wright.

     

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    When you use the copyright notice it may stop someone from stealing your photographs, either because it serves as a reminder that the work is protected or because the notice interferes with the use of the work when it is part of the photo. Also, it helps to post a copyright notice on your photos because the infringer then cannot say the use was innocent. You also may be entitled to damages under the Digital Millenium Copyright Act if the proper notice is removed prior to infringment. You may use the copyright notice without registering your work with the U.S. Copyright Office. <br /><br />

    Best,

    Waiver for Portrait ?

    in Business of Photography

    Posted

    The issues in TAKING a portrait have to do with whether you are invading the person's right of privacy (do they have an expectation of privacy). The issues in USING a portrait have to do with rights of publicity. That's when you need a model release. <br /> <br />Get more info here<a href="http://www.photoattorney.com/2006_02_01_photoattorney_archive.html" target="blank"> on rights of privacy/rights of publicity on my blog.</a>

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    Best,

    <br />

    Carolyn<br />_________________<br />Carolyn E. Wright, Esq.

    <br />

    <a href="http://www.photoattorney.com" target="_blank">www.photoattorney.com</a>

    <br />

    <a href="http://www.photoattorney.com/products.html" target="_blank">Author of the new "Photographer's Legal Guide&quot</a>

    do I need a model release for this photo?

    in Business of Photography

    Posted

    Quang-Tuan is right! You don't need a model release for editorial use. <br /><br />One of the rights of privacy is known as the right of publicity. It is the commercial appropriation of someone's name or likeness. It happens when someone uses the name or likeness of another without consent to gain some commercial benefit. It usually occurs when a photograph of a person is in an advertisement, so you should get the person's permission to use their likeness in a photo which can be shown by a model release. Permission to use someone's name or likeness is not legally required for an editorial use. The tough thing is determining whether a use is editorial or commercial. But it is not decided by whether the photograph is sold.

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    Newbie IRS question

    in Business of Photography

    Posted

    Here's an excerpt from my new book that addresses this question:

    <br /><br />

    <i>Here are some ways to demonstrate to the IRS that you are running a photography business:

    <ul><li> Make a profit in three out of five consecutive years, and you need to show nothing else.

    <li> Keep accurate and updated business books and records on your activities.

    <li> Leave your time-consuming day job or reduce your time there to devote to your business.

    <li> Market and promote your business.

    <li> Follow standard or develop routine practices for your business.

    <li> Make attempts to reduce the disparity of your losses compared to your income from the business.

    <li> Hire experts such as accountants, marketing firms and lawyers, or study ways to help your business make a profit.

    <li> Experience losses similar to others in the same business.

    <li> Operate your business like those who do make a profit with their photography business.

    <li> Be able to show that your business will eventually make a profit. </ul>

    Other than the first item, none of these will definitively prove that your photography activities are a business. Further, the IRS may look at many other factors to determine the purpose of your photography. Following the above practices will not only help to show that your photography is a business, it will actually help your business.

    <br /></i>

     

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    Best,

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    LLC vs. S-Corp

    in Business of Photography

    Posted

    It can vary a bit by state, but generally the tax handling, administration and setup for a one-person LLC is easier than an S-Corp. Check with a CPA or an attorney.

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    I've prepared a chart that lists many of those pros and cons (such as administrative hassle, legal protection, ease of set up) for the various business entities. I'll send it for free to any one who requests it via email to me at carolyn@photoattorney.com. Please include your name and snail mail address with the request.<br />

     

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    Model releases

    in Business of Photography

    Posted

    You do not need model releases when the photos are used for editorial purposes, even if the models are under 18. <br /><br />Read more about editorial uses <a href="http://www.photoattorney.com/2006/03/editorial-use-of-persons-photograph-is.html" target="_blank">here on my blog.</a>

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    Note, however, parents can be VERY sensitive about the posting of their children's photos on the web.

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    Best,

    <br />

    Carolyn<br />_________________<br />Carolyn E. Wright, Esq.

    <br />

    <a href="http://www.photoattorney.com" target="_blank">www.photoattorney.com</a>

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    Protect your work; register it today!

    Just discovered hospital using my image on Web site for 3 years without permission

    in Business of Photography

    Posted

    It is not correct that you have 90 days upon finding the infringement to register your photos. The 90 days to register has to do with the time after publication so that you can get statutory damages instead of actual damages. Since the hospital has used your photos for 3 years, you likely are entitled to actual damages only. But that still can be significant and lawyers, including me, sometimes take cases on contigency in those circumstances.

    Contracts

    in Business of Photography

    Posted

    "Business and Legal Forms for Photographers" by Tad Crawford is a good resource. Crawford's book provides form contracts for photographers and includes a CD of the forms so that you can easily revise them to fit your individual needs. It also explains the purpose of each proposed contract clause.

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    COPYRIGHT

    in Business of Photography

    Posted

    A photographer owns the copyright for photos the photographer takes except if they fall into the �work for hire� category. This relationship is created in two situations: (1) when the photographer is an employee hired to photograph for the employer, such as a photojournalist who is an employee of a newspaper; or (2) the photographer is hired to provide photographs for certain collective works or compilations and pursuant to a written agreement that specifically includes the provision that the work is to be considered a work made for hire. <br /><br />

     

    If you own the copyrights to your photos, you can REGISTER them with the US Copyright Office.

    Doing pics for an animal rescue--who owns pics?

    in Business of Photography

    Posted

    A photographer owns the copyright for photos the photographer takes except if they fall into the ﾓwork for hireﾔ category. This relationship is created in two situations: (1) when the photographer is an employee hired to photograph for the employer, such as a photojournalist who is an employee of a newspaper; or (2) the photographer is hired to provide photographs for certain collective works or compilations and pursuant to a written agreement that specifically includes the provision that the work is to be considered a work made for hire. Therefore, freelance photographers are only subjected to work-for-hire status when they agree to it contractually. This provision is usually negotiable, and monetary considerations should be included when a photographer is asked to give up copyrights.<br /><br />

     

    So if the job is not a work for hire, you own the copyrights to the photos of these animals and can sell them.<br /><br />

     

    Also, you do not need a "property release" for animals that have no trademark associated with them and you are not trespassing (an invoice with terms and conditions below will show that you're not trespassing). See my <a href="http://www.photoattorney.com/2005/04/know-your-rights-and-limitations-when_23.html" target="_blank"> <b>BLOG HERE </b></a> for more info.

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    It's always better to do a photo job pursuant to a written invoice with terms and conditions, even if the job is free. Tad Crawford's "Business and Legal Forms for Photographers" is a good source for examples. See my : <a href=" http://www.photoattorney.com/2006_04_01_photoattorney_archive.html"target="_blank">April 14 <b>BLOG HERE</b></a> for more info.

    <br /><br />

    Best,

    <br />

    Carolyn<br />_________________<br />Carolyn E. Wright, Esq.

    <br />

    <a href="http://www.photoattorney.com" target="_blank">www.photoattorney.com</a>

    <br />

    Protect your work; register it today!

    Photography Insurance for NY

    in Business of Photography

    Posted

    Generally, inland marine policies cover only your equipment. Insurance companies such as State Farm offer those types of policies. Be sure that your inland marine policy covers losses from business uses. <br />

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    Many professional photography groups offer insurance policies tailored for the various types of photographers' needs that usually include coverage for both equipment and liability. For event photography, check PPA, WPPI, and similar organizations.

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    permission for aerial photography

    in Business of Photography

    Posted

    If you are in a public space (the air is public), you can shoot whatever you see as long as you don't use devices to shoot through barriers that are intended for privacy. For example, you could not try to shoot through someone's window blinds. But if someone is nude in their fenced back yard, there is no expectation of privacy from above.<br />
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