In this week's episode we talk about legal issues that photographers often deal with. Jim interviews Carolyn E. Wright, an attorney from the Photo Attorney blog who specializes in the legal needs of photographers.
Remember – Improve Photography is NOT your attorney. We're simply giving legal information and we are NOT offering legal advice. When you have legal questions for your photography business, you need to be sure to check with an attorney licensed in your area. And since we live in the US, we're only really speaking to US law, though we will bring up some issues that impact our international readers/listeners as well.
A few terms to know along the way:
DMCA: Digital Millennium Copyright Act
CMI: Copyright Management Information – this can be your name, contact information (such as your website or a phone number), or a copyright notice
[2:34] How should I use a watermark? What protection does a watermark on my image give me?
Many photographers put watermarks on their digital images these days. The reason for this is that it alerts viewers to the fact that your image is YOURS, and protects your images from being stolen and republished. It doesn't need to be anything huge or fancy. Simply a small version of your company logo on the bottom right corner will suffice, and is usually not too distracting. (And remember – painters sign their work too!) You can also put the formal copyright notice on your image (which would include the © symbol or the word “copyright”, as well as the year of first publication of the image and the copyright owner's name) which has the benefit of preventing someone who infringes your image from asserting an “innocent infringement defense”. When someone removes any sort of CMI (such as cropping a photo to remove the watermark) from your photograph, it is a violation of the DMCA and can lead to damages in addition to copyright infringement damages.
[6:10] Can I use metadata to protect my images against infringement?
Absolutely. Removal of an image's metadata is a form of removing CMI from your photo, and violates the DMCA as well. So put your contact information and copyright notice in the metadata of your image in addition to watermarking your photo.
However, there is an intent requirement in the DMCA that basically means that to violate the DMCA, the infringer must have intended to remove the CMI. Accidental removal could be exempt based on the facts of the specific case.
[9:36] What if someone takes my photo and posts it to Pinterest?
Pinterest is a little tricky. When you pin something from the internet on Pinterest, it links back to the original source. This makes the case that this use of someone else's work is considered “Fair Use“. However, if you download an image from a web site and then upload that image to Pinterest, the metadata is stripped from the uploaded image. When that happens, there is a good case that this use is NOT “Fair Use”.
There have been no court rulings yet to determine whether or not Pinterest is Fair Use.
[11:00] Is a watermark necessary to have the copyright of an image?
The law has been changed in the last couple decades: current US copyright law dictates that copyright arises at the moment the photo is fixed (meaning when you press the shutter button). (Canadian law recently changed to reflect this same policy.) The rights you have relating to photo infringement depend on whether or not you have registered your photo with the United States Copyright Office.
[12:20] What should I know about infringement across nations?
A non-US citizen who finds that their photo has been infringed upon by someone in the United States: In this case, it would have benefited the photographer to have registered their photo with the United States Copyright Office. But even if they didn't, they can still sue the infringer. The general law is that you sue in the area where the infringer is located, so a Canadian photographer who found an infringement of their photo by a United States company would sue that company in the US. If the photo had been registered with the US Copyright Office, then the photographer is entitled to statutory damages as well as actual damages. If it wasn't registered, then only actual damages could be claimed.
A US citizen who finds that their photo has been infringed upon by someone outside of the United States: In this case, the photographer would need to find out the copyright laws in the location where their photo was used and see what, if any, rights they have. The photographer would likely need to hire a lawyer from that area and possibly even travel to that location to file suit.
[17:18] Should I create an entity for my business (such as an LLC) or run it as a Sole Proprietor?
There is an advantage to running your business as an actual corporation instead of a sole proprietorship: if you happen to get sued while in the course of your photography business, your personal assets (like your house, for example) are protected from being part of the settlement. But the disadvantage is that there are a lot of rules and regulations you need to follow if you do set up a business entity. But a few rules (even annoying ones) are much better than potentially losing your house because of a photography accident.
[18:45] What kinds of things do I need to do if I'm going to set up a business entity for my photography?
- Keep your assets separated. The business needs its own separate bank account.
- You will need to draw a salary from your business instead of just taking any arbitrary amount from the business bank account.
- The business needs to file a separate tax return. Get a CPA to help you with this.
- Represent to the client that they are hiring the company, not you. It is very important that your clients understand that any contracts they are entering into are between them and the business.
- Talk to a CPA about which formal business entity is right for you. This depends on many different factors, so make sure you find out what fits your situation before you set something up.
- Get a good insurance policy to protect yourself as much as possible.
[21:40] What do photographers need to do to let the client know they are hiring the company, not the person?
Make sure you have this posted on your website (you can put it in the footer). Put it on your business card. And in every contract you make with clients, be sure that it lists the name of your business instead of you personally.
[23:00] Sales tax – what do I need to know about this?
Do a lot of research before you start your business. Talk with a CPA who is familiar with the laws in your area. Get some advice from the CPA about how to run your business and handle the finances. If you are a member of a professional photography association, check with them for information. Part of the reason you pay dues to these associations is because they supply this kind of information.
[25:00] What is the purpose of a contract?
A contract will formalize and put down in writing what the agreement is. Use this to spell out the expectations of each party. Answer the questions: who, what, where, when, and why. You can purchase form contracts if you're not sure what to put in your contract. Talk to people in your industry and find out what kinds of things you should be putting in your contract.
[27:02] What do I need to know about the name of my business and trademark issues?
If your name is Sarah Jane and you try to create “Sarah Jane Photography”, do you need to worry about trademark issues? Trademark law always allows you to use your name in your business, so you won't get in any trouble for using your name even if someone else is already using it (there might be another Sarah Jane Photography a few states over, for instance). However, if you were to try and name your business “Happy Heart Photography” but someone else is already using that name, you will have to think of something different.
[28:38] When do I need a model release?
Any time that it is possible for you to get a model release, please do so! Even if you're not positive you need it, get one if you can.
There are a few things to think about when you are deciding if you need a model release or not. One thing to consider is the issue of whether or not a person has an expectation of privacy. Generally, when people are in public, they have no expectation of privacy. Another factor is the type of use the photo will be used for. Fine art uses (which are generally considered to be editorial uses) do not require a model release.
When you post a photo you have taken on your photo blog, it may be considered a commercial use because you are trying to drum up business. In some states, showing people examples of your work may not be considered a commercial use. However, it's a grey area, and to save a lot of headaches you would be wise to simply just get a model release anyway.
It's not necessary to have a completely separate form for your model release – you can simply add a clause to your standard contract stating that the client is authorizing you to use the photos you take for commercial purposes. It is smart to have them initial this section so you are sure they understand what they are agreeing to. The Wedding Contract and Portrait Photography Contract forms we linked to above (Photo Attorney Contracts) contain language for model releases.
[33:06] Is a model release ever required to take a picture?
Any time there is a question about whether or not someone would want their photo to be taken, it's a good idea to have a model release (a good example of this would be nude photos indoors – this is a time when you'll want to be sure you have a model release stating that you have the person's permission to take these photos). If the person has a reasonable expectation of privacy, you need a model release to take their picture. But if you are in a public place, they see you taking pictures of them, and they don't stop you, you don't need a model release to take the picture. But remember – this has nothing to do with using the picture for commercial purposes.
[35:10] When do I need a property release?
Generally you don't need a property release for buildings if you are shooting from a publicly accessible area. This includes homes, businesses, etc. There is some question if you are shooting a building with a visible trademark, so in those cases you would be wise to get a property release.
The situation completely changes, however, if there is a sculpture or water feature in the photo. This is especially relevant if the sculpture or water feature is a main part of your photograph. At this point, you are infringing on the copyright of the artist who created the sculpture. In this case you would absolutely need a property release.
[38:05] If I find that someone has stolen my image, what steps can I take?
As soon as you find an infringement, document it. Print the screen, take a screen capture, whatever you need to do – get it on record that your photo has been stolen. Depending on who has taken your photo, what they are using it for, and what outcome you want, there are different ways to proceed at this point.
You can be lenient and simply let the use slide. Or you may be inclined to contact the person to let them know that what they've done isn't acceptable, but that you will give them a retroactive license, with the understanding that next time you won't be so lenient.
You might send a cease and desist. If you just want the use to stop, you can send a DMCA takedown notice. You can contact the infringer and ask them if they will take it down. If they won't, you can contact the internet service provider and ask them to take it down.
If you want to be paid for the infringement, even if the use stops immediately, there is a past infringement that you could ask to recover for. In some cases, the actual damages may be significant even if you haven't registered your photo with the US Copyright Office. You can try to recover damages on your own or you can ask an attorney to help you. (DMCA damages start at $2,500 and go up to $25,000.)
To contact Carolyn's office for help with your photography legal issues, click here. Many of the cases they deal with are done on a contingency basis, meaning that most of the attorney's fees are paid out of the winnings from the case.
[44:45] I uploaded a time lapse video to YouTube and I saw some of my photos from that video being used to promote the local news station. What can I do?
This is a violation of your copyright, and you are entitled to at least an ordinary license fee for this use. A great place to look for guides about standard license fees is software called fotoQuote.
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