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>

<p>Collage is a tricky area with respect to copyright and court decisions go every which way. Generally speaking, each case is decided on its own merits. For example, some of the cases described on the Stanford fair use site have very different outcomes even though the usage was similar. For example, compare <em>Cariou v. Prince</em> with <em>Ringgold v. Black Entertainment Television, Inc.</em> Although selling can be a factor, it is not determinative and one can definitely infringe a copyright even if the copies are not being sold. The <em>Cariou v. Prince</em> is a recent decision in which some usage was found to be fair use and other was not. <a href="http://scholar.google.com/scholar_case?case=5189514988129057173&hl=en&as_sdt=6&as_vis=1&oi=scholarr">Link.</a> However, the different Federal Circuits vary in their analysis of fair use so this particular decision would not be controlling outside of New York, Connecticut, and Vermont.</p>

<p>It can depend on the nature of the relationship. For example, is the business getting a share of the sales? Is it renting the space to you or letting you hang the prints for free? Are you picking the locations of the images or is the business?<br /><br />You can negotiate who bears the risk of loss with the business if the prints are damaged but my guess is that the business will insist that they are hung at your risk. With regard to injuries, this would be an area of negligence law but you could negotiate with the business whether one party must indemnify the other in the event an injury or other claim. My guess is that if you raise this issue, the business will insist on being indemnified by you if someone gets injured or the business gets sued because of the images.</p>

<p>I can't really speak with regard to practices in the UK but a 10,000 copy print run seems high for a niche book. However, the editor at the publisher seems cooperative so why not ask her?</p>

<p>You can registered "published images" as groups but the registration has to be on the paper forms with a higher fee. The forms can be downloaded from the US Copyright Office website. Published images can only be registered by calendar year. Unpublished images may be registered as collections and can encompass as many years as you wish. These images can be registered online and is by far the least expensive and simplest way to register photos. Note that "publication" has a specialized meaning under the copyright statutes. Displaying a photo is not the same as publishing one.</p>

<p>Also, images must be timely registered if you want to recover statutory damages and be eligible to recover attorney fees. As a practical matter, few infringements are worth pursuing legally if the images were not registered before the infringement took place.</p>

<p>Jamie,<br>

I am not discouraging you from going forward with your project but did want to alert you to the fact that the laws concerning defamation and privacy are significantly different in the UK than in the US. Generally speaking, defamation is much more actionable in the the UK but privacy rights are less actionable. My recommendation is that you should be careful not to rely too much on advice that is based on US law if you are publishing in the UK.</p>

<p>Spain recently revised its copyright laws to enable rights holders to report websites hosting infringing content to a newly created government commission. I don't know the name or the status of the commission but some relief may be possible. You might also want to consider contacting an intellectual property attorney in Spain to see what your remedies might be.</p>

<p>I found it interesting from the practical side as stated above because the photograph looks too amateurish to have been taken by an amateur photographer. From the legal perspective, the identity of the photographer is important for several reasons. If taken by a professional during a modeling session, a judge or jury could find implied consent irrespective of whether the model release was forged, especially if Kennis was paid for the session. If taken by the mother, a judge or jury would likely find that the model release was forged. With respect to damages, the photographer could argue that Kennis was properly compensated assuming she was paid or received something of value during the modeling session. If taken by the mother, then the photographer is basically stealing someone else's work and profiting from Kennis's likeness without Kennis obtaining any benefit. With regard to the band, there is a higher probability that the photographer would have to indemnify them if he did not take the photograph.</p>

 

<p>My take on the legal aspects is that Kennis's legal theory is a violation of her "right to publicity." Copyright infringement actions cannot be filed in state courts and she does not own the copyright to the photo if she did not take it.<br>

What I find interesting is the dispute over whether the image was taken by her mother or a professional photographer. What are your opinions about the source of the light considering the shadows and the vignetting? Granted, the image could have been edited but the lighting looks too "amateurish" to have been done by an amateur using an amateur camera.</p>

<p>A lot of us have been confronted when photographing various subjects. The initial inspiration for my book on photography law was a confrontation over photographing a bulldozer pushing dirt around in a muddy field. It was, egads, part of a Superfund site cleanup (admittedly a rare event). I am looking for some examples of other photographers being confronted for photographing mundane subjects. Thanks.</p>

 

<p>Michael,<br>

My feeling is that law enforcement and security should not respond to photographers at all except for cases when the photography is an actual crime (e.g., upskirting). I take issue with the premise that photography is a necessary element of terrorism and in any case it is not predictive of terrorism. As a decisionmaking tool for law enforcement and security, photography should be given the same weight as skin color (i.e., none).<br>

The leading case on stop-and-identify is <em>Hiibel v. Sixth Judicial District Court of Nevada</em> . That case extended the "reasonable suspicion" standard to an officer's right to demand that a person reasonably suspected of engaging or about to engage in criminal activity to identify themselves to the officer.These laws are summarized at http://en.wikipedia.org/wiki/Stop_and_Identify_statutes. <br>

Video of the Hiibel incident can be found at: http://www.papersplease.org/hiibel/video.html. It was not the most elegant of arrests.<br>

My (educational and nonbinding) opinion is that an officer would have to be articulate a reason for believing that a crime was about to be engaged in in order to require a photographer to provide his name. There are some open questions in this context. For example, would a stop-and-identify law apply if the officer wrongly believed that a law prohibited certain forms of photography. It is common for officers to cite legislation that does not actually prohibit photography such as the Patriot Act. Similarly, it is unclear how definite the connection with a crime would have to be before an officer could reasonable suspicion. For example, would a generalized concern that a photographer will be providing the photographs to terrorists suffice or would the information have to be more definite such as the officer knowing that the person was a member of a terrorist organization. I believe that the later would be the rule but only a court would know for certain<br>

Damon,<br>

The Seven Signs of Terrorism video is downright spooky. It seems more likely to have been produced by the East German Ministry for State Security (commonly known as the Stasi) than the Kansas City government. Any good citizen should have reported at least a couple artists or birdwatchers today<strong>.</strong><br>

<strong><br /> </strong></p>

<p><em> <br /> </em> </p>

 

<p>Youtube is becoming a repository of photographers being harassed for taking photographs of lawful subjects. Some recent additions are:<br>

Taking video near Federal Reserve buildings:<br>

<a href="http://www.tonyskansascity.com/2009/04/capturing-images-of-federal-reserve-in.html">http://www.youtube.com/watch?v=6TVfUVRsOZE&feature=related<br /> </a> <br>

Taking video of Federal Courthouse in Phoenix, AZ:<br>

With a few limited exceptions, there are no laws against taking photographs of federal buildings. It was interesting to see security misstating the law and making threats. It was also interesting to see photographers standing up for themselves.<br>

<br /> </p>

 

<p>My experience is that you get some very nice scans of medium fomat negatives and transparencies using flatbed scanners. I use an Epson Perfection 2450 which many people would consider to be an ancient scanner. You could likely do better with a dedicated film scanner but for your applications you would likely be satisfied using a quality flatbed that is designed to scan medium format and larger negatives.</p>