Friday, October 16, 2009

It Really Is A Shame

Here is a link to a post on the Copyright Action forum called, "The Real Cost of Being Sued By Getty [Images]."

A small company used one unlicensed image "about the size of a postage stamp" on its website. Getty sent them a bill for unlicensed usage for £1,700 (the image could probably have been licensed for a tenth of that, or a similar image licensed royalty-free for a hundredth of it.)

They relied on advice from "experienced business people," Internet lawyerin', and all the old tired arguments we hear when such issues are discussed 'mongst the crowd.

Net result?

They paid the license fee, they paid lawyers, and they paid Getty's legal bills. They won't disclose the final amount but it is surely north of £25,000, or roughly Forty Thousand US dollars.

It was a small company, the error was inadvertent (and made by a third party web developer) and... it cost them a significant portion of their operating revenue. It could very well end up bankrupting them. Not to mention the enormous stress it placed on multiple employees of the firm as well as diverting time and resources from operation of the business.

Bottom line?

If it isn't yours, don't take it.

If you do, and somebody calls you on it, 'fess up, pay up, and move on. If you admit fault (when you're clearly caught) and offer to negotiate, they'll probably work with you. Start relying on Internet Lawyerin', and, well, you end up where these poor folks did. And that doesn't really help anybody.

More after the jump - click here!

Monday, October 12, 2009

Little Ways to Change the World

Today I read the obituary of one Marty Forscher, a repairman.

Of course, I read it in the New York Times.

Why was a repairman memoralized in the Gray Lady?

Here's why...

Mr. Forscher opened a professional camera repair shop in New York City right after the Second World War. He had been working on cameras to make money before the war, and during it worked in the Navy photography shop (run by the famed Edward Steichen!)

Mr. Forscher was a native genius and inventor - see the obituary for a small sampling of examples - but in the 1960's, he started collecting discarded cameras from magazines, fixing them, and sending them to aspiring photojournalists in the South for use in documenting the Civil Rights movement. When they were soaked by fire hoses, or smashed by police, he would fix them right up and send them right back. The images produced by the cameras were published all over the world.

The pen is mightier than the sword, but the camera is also a fearsome weapon for truth: by arming these men and women, Mr. Forscher played a small but vital role in their dangerous work. As the evil and the furtive have been learning since Leopold's day, the evil that flourishes in darkness and ignorance will not survive the light. Well done, Mr. Forscher, well done.


Link courtesy of James Pomerantz at

More after the jump - click here!

Thursday, October 8, 2009

Licenses, Releases, Copyrights and Contracts: Let's Review

I get a lot of emails about model releases and various confusions about what they are. Herein, a brief refresher on the four Intellectual Property issues that are of the most importance to photographers, models, and other people in the industry.

Please be advised that while I am a licensed and experienced intellectual property attorney (I have been admitted to the bar of the state of Illinois, the Northern District of the Illinois Federal Circuit Court, and to practice before the United States Patent and Trademark Office, as well as appearances before the United States Copyright Office) I may or may not be licensed to practice in any jurisdiction where the reader may reside or have business, and nothing herein is meant to constitute specific legal advice. Always consult a lawyer licensed in your jurisdiction and familiar with the relevant law before making legal decisions.

There are two sets of rights which may attach to any photograph showing a recognizable human being. The first we will collectively refer to as the right of publicity, although in some jurisdictions it is also referred to as the right of privacy, even though technically they are two different things. For purposes of our discussion, the right of publicity (or, for brevity, the RoP) is the right to control the use of your own likeness. This right belongs to the recognizable human being depicted, to whom we shall refer as the model. It is governed by state law.

The other right which may attach to the photograph is copyright. Copyright attaches to the photograph the moment is fixed in tangible form (including either a film negative or an electronic image file in a digital camera's memory.) It is granted by the Copyright Act in the United States, and by similar laws in other countries. In the US, the copyright belongs to the creator of the work. For a photograph, that's the person who pushed the shutter release, whom we shall call the photographer. It is governed by Federal law.

Copyright is the first of the four IP issues when dealing with the question of who may and may not use a photograph. Copyright trumps all other rights: if the holder of the copyright has not granted permission to make any particular use of the photograph, it is almost certainly unlawful to make such use. The oft-misunderstood doctrine of "Fair Use" will almost never apply to any matter relevant to our discussion. If a professional photographer took a picture of a professional model, almost no use the model could want to make of it is a Fair Use. Put it from your minds.

It is interesting to note that in Canada, if a model hires and pays a photographer to take pictures of them, the model owns the copyright. This is a very unusual rule. In the US, the photographer owns the copyright, even if the model is paying the photographer. The only exception would be if the photograph was a "work for hire," a very misleading term which requires far more than that the photographer is being paid. Again, in almost no situation you are likely to run across will the photograph be a work for hire. Put it from your minds.

So. The photographer has a copyright. The model has a right of publicity. They wish to allow each other to make various uses of photographs subject to these mutual rights. What to do?

If the photographer wants to use the model's likeness, he needs a release. A release is just permission to use someone's likeness in a way which otherwise they might be able to prevent as a breach of their right of publicity. Here is the text of the release that Norma Jeane Mortenson, later known as Marilyn Monroe, signed at her first session with the incomparable Bruno Bernard, greatest of the Hollywood glamour photographers:

"Release 7/24/46
I hereby permit Bernard of Hollywood to use the pictures he has taken of me for exhibition and commercial use.

Signature: /Norma Jeane Mortenson/"

With one minor exception, that release would stand up in court in any jurisdiction of which I am aware. You will note, however, that it does not say anything about payment, nor does Bernard's signature or any obligation or promise by Bernard appear. Why? Because a release is not a contract. A release is a release. A release can be consideration ("Consideration" is the legal word for "payment," but it does not mean the same thing as "money.") for a contract. A release can be included in a contract. But a release is not a contract, nor must a model receive any payment whatsoever for a release in the vast majority of cases. You give the permission, the permission is given. It should also be noted that unless the release contains limiting terms, such as a time limit, it is generally held as unlimited in time and space. Releases need to be written in many jurisdictions, but not all. When in doubt, releases should always be written.

Similarly, the photographer may give the model the right to use the copyrighted image for any particular purpose by granting the model a license. Here is the text I use to grant models a license to use photographs for their portfolios:

"I, Marc Whipple, by my signature below grant [MODEL] a license to use the copyrighted photographs I have provided for them on [DISC, EMAIL, ETC] for the purpose of self-promotion. The photographs may not be used for any commercial purpose other than promoting [MODEL]. This license shall be perpetual and throughout the world, but is not transferrable.

Signature: /Marc Whipple/"

You will notice again that this does not talk about money, nor does it require any promise from the model. Why? Because a license is not a contract. A license is a license. A license may be consideration for a contract. A license may be included in the text of a contract. But a license is not a contract, nor must a photographer receive any payment whatsoever for a license in the vast majority of cases. You give the permission, the permission is given. (Note, however, that while whether a release has to be written, and what format it requires, varies widely by jurisdiction, the requirements for a copyright license are standard throughout the US.) Like releases, licenses must contain any limiting terms at the moment they are granted: limits cannot be imposed later. You will note that my license does not allow the model to commercially exploit the images or to allow others to do so.

So again. The photographer can grant a copyright license. The model can grant a release of RoP. Excellent well, excellent well... but what if the parties are not quite this straightforward for some reason? Suppose the model is concerned they will not get the photographs they were promised by the photographer in consideration for posing? What if the photographer is worried the model will not pay for the photographs after they review them?

The parties, wishing to bind each other, must now enter into a contract.

A contract is a mutual exchange of promises, nothing more, nothing less. The promises may be executed immediately upon entering into the contract (such as when you pay cash at the store for goods) or may be delayed until future events occur or do not occur (such as when your insurance company promises to pay you if your car is stolen.) But for a contract to exist, both parties must make a promise, either to do something they are not otherwise obliged to do, or not to do something they would otherwise be entitled to do. Contracts generally do not have to be written (in some cases the copyright law does require written documents,) although of course it can be difficult to prove the terms of a contract that was never written down. An oral contract which contains a promise to later execute a written document (such as a license or release) is perfectly enforceable, if the party seeking to enforce it can prove it existed at all.

Interestingly, it's that latter formulation (the parties promise not to do something that they would otherwise be entitled to do) that governs contractual use of both releases and licenses. The model could use a promise not to sue a photographer for infringement of the model's RoP as consideration for something they want from the photographer (like prints or digital image files.) The photographer could likewise promise not to sue a model for infringement of copyright in exchange for something they want from the model (such as posing time, or a RoP release.)

So, let's take our oft-repeated situation where a model is trading posing time for images they can use to promote their modeling career. The parties should, of course, discuss what they expect (how many images, when they will be delivered, limits on usage by both parties) before the shooting even begins. When the session is over, the model usually signs a release. When the photographer delivers the images, they usually include a license. But if they have concerns that problems may ensue, they should enter into a contract. For instance, here is a short example of a contract which would govern the above sort of exchange:

"Marc Whipple (hereafter, "Photographer") and Jane Doe (hereafter, "Model,") by their signatures below, hereby enter into this Agreement for Photographic Services:

1) Photographer agrees to provide Model with six good-quality digital image files within thirty days of the signing of this Agreement. These files shall be suitable for use on Model's Internet portfolio site and comparable to the other images located there. Photographer also agrees to provide Model a reasonable copyright license allowing her to use the image files for reasonable self-promotional purposes.

2) Model agrees to provide Photographer with a reasonable likeness release which will allow him to make commercial usage of any and all photographs of Model which Photographer has produced.

Signatures: /Marc Whipple/, /Jane Doe/"

Now, this is a highly simplified contract. But it ties back in to our earlier examples. The photographer has to give the model her images as he's agreed, and a license to use them. If he does neither of these things, he's in breach of contract, and the model is not obliged to sign a release. In fact, she can sue him for her photographs, or for damages!

Similarly, the model has to sign the release, if the photographer lives up to his end of the bargain. If she doesn't, she's in breach (she's broken a legally enforceable promise,) and the photographer can sue her to get damages (money) or even specific performance. In other words, the court could order her to sign the release, and find her in contempt - possibly even jailing her! - if she refuses. If she were to try to sue him for breach of her RoP, he could use the unfulfilled contract as a defense, and her suit would likely fail.

A "real world" contract of this sort might have both the release and the license "built in," so that the terms are specified in advance, and just make them conditional upon everybody doing what they're supposed to do. In fact, that's usually how it's done in commercial photography. But this example shows the process as a series of discrete parts.

I hope those interested in the subject find this a useful and hopefully not too-intense introduction to these topics. Interested parties are invited to comment (I will respond here) or email me with questions or comments.

More after the jump - click here!

Thursday, October 1, 2009


Two posts in one day!

Just a quick update. We did go to Calumet, but they were out of pretty much everything. The woman behind the counter (who aside from being just adorable is, more importantly, also a highly-skilled photographer and a most expert salesperson) exclaimed, twice, "Oh, I'm waiting for one of those too!" when asked for something. The only thing we ended up buying was a packet of Brilliant Museum photo paper for my wife to play with. I just looked in my stash and I had a packet, but I already used some of it and I think she wants to do some comparison prints.

So I went on their website and ordered the stuff I wanted. They're switching filter manufacturers (their old manufacturer is Hoya, which produces material in Japan, and their new one is B+W, which produces material in Germany.) So their store-brand filters are largely on clearance - I got a circular polarizer for my wife for less than half price, and a 2-stop ND filter for both of us ditto. The only thing back-ordered was a .6 graduated ND filter I want mainly so my wife can do landscape work with it. They're back-ordered EVERYWHERE, for some reason. Not that I mind waiting, it's just odd. I guess that the recession hasn't hurt demand for 2-stop graduated ND filters. Go figure.

In case you wonder why I need all these ND filters, the regular 2-stop ones are essentially a way to restrict the amount of light that gets into the camera so you can slow down your exposure, or open up your aperture, even in bright light. There comes a point where, if you're outdoors in full sun, even at ISO 100 equivalent sensitivity, you just can't use a long shutter speed and/or a large aperture because the camera just can't handle all the light. This filter is essentially sunglasses for your camera, reducing light intake without affecting color. The back-ordered one is graduated - at one end, it's clear, and at the other, it's 2 stops darker, and from one end to the other it gradually gets darker or lighter depending on which way it's turned. This allows you to shoot things of extremely different brightness without blowing one side out, or making the other side too dark. The classical application for this is shooting landscapes - you hold the filter so that the light end is toward the ground and the dark end is toward the sky. Then you can still have a rich blue sky and a well-exposed ground.

We also went to the Blick store down the road from Calumet (interestingly, both Calumet stores in Illinois have a Blick store down the road) and she got a sheet of silver foil matboard. She looked pretty funny holding it in her lap all the way home, but we were in my truck and I was afraid it would get wet and/or beaten up if we put it in the back. (It has been raining here all day.) She plans to experiment with this for black and white pictures.

More after the jump - click here!

Stirrings of Life

Well, obviously I haven't been very photographic - or very much of anything - here lately. Mostly I mess around with MMORPG (which shall remain nameless - I don't do endorsements unless I'm paid) and other useless ways to pass the time.

However, I decided that if I have all these pictures around, I might as well try to capitalize them, so I applied to another Internet stock agency. (Which shall also remain nameless until they accept me.) You have to submit a batch that passes human-monitored QC before you're accepted for full upload, and they failed my first batch because one of the images was too soft. I think they're nuts (I won a contest with that photo) but whatever.

I will not be active in their online community, as that never seems to go well for me. I am going to upload pictures and if somebody wants to license them, I'll get money. Well and good. Hopefully I won't kill this one by joining.

I bought a macro lens and fooled around with it some, but otherwise, I get my camera out for family stuff and that's about it. I think the PhotoShelter Collection shutting down hit me harder than I realized at first. (PhotoShelter's other services for photographers are still available and continue to receive good press. If you are a more commercially-oriented photographer, I think they are a good value and work well.) I am largely motivation-free when it comes to photography. Add to that some personal drama (not directly involving me) with the studio space I use and it's just not appealing at the moment.

However, I need to get out and I need to do stuff and this is getting a little sad. (Okay, sadder.) I think I'll go roust out my shopping partner and run to Calumet Photo just for fun.

I resubmitted a new batch this morning, too... I replaced my award-winning photograph with one which Richard Freaking Leakey licensed for a presentation for Science Week in NYC. If they don't take that, I will simply submit pictures of kitties and cute children until they let me in. Then I will upload a massive batch of subversion.

More after the jump - click here!