Leslie Burns, of Burns Auto Parts fame has recently joined forces with Carolyn Wright of PhotoAttorney.com to further educate the photo community on legal issues. Once Leslie was officially onboard, timing was right to ask her if she would consider contributing to our blog. She did not hesitate and offered to share with us what she thinks are the 5 most popular legal errors in the photo world. If you have other questions not addressed here, please email me and we will see if we can get them answered.
5 Popular Legal Errors in the Photo World
There is a lot of mixed legal information out there now. Unfortunately, much of the info available, particularly on sites like Wikipedia, is legally inaccurate and can hurt you if you rely on it. So, in the spirit of trying to help, here is a list of five common legal misconceptions in the photo world.
1. If you make a photo, you have to register its copyright within three months or it’s not worth bothering.
This is a common misunderstanding of the 3-month rule. That rule is really a safe harbor for published photos. It says that if you shoot a photo and publish it, you have 3 calendar months from that first publication date to register the image’s copyright and it will be like you registered it the day it was published. If someone infringes on your work during that time, you can still get the enhanced remedies of statutory damages and attorneys’ fees, even if you register it after the infringement starts (as long as you register within those 3 months).
The general rule is that you have to register the work before an infringement to get enhanced remedies, but the 3-month rule gives you a window. However, lots of infringers will say you can’t get statutory damages and attorneys’ fees if you don’t register within three months, period. That isn’t true. As long as you register before the infringement starts, you can get enhanced remedies–even years after you make the photo. And you have to register your work to bring suit anyway. So please, register all your work, as soon as possible!
2. You must pay your models real money or the release is invalid.
“Consideration” is a nebulous concept in contract law but the fundamental thing is that it doesn’t have to be of the same value on both sides. So, although you need consideration and it should be mentioned on your model releases that there has been an exchange of consideration (“given and received”), that consideration can be a dollar or a print or just about anything.
Relatedly, always get a release signed if you possibly can, even if you don’t think you need one. Better to have one and not need it than the reverse. It;s damn cheap “insurance.” The release apps are fine, but take photos of IDs to prove age and identity just to cover your butt.
3. If your work appears on a site with a DMCA Takedown Notice procedure and the site takes down your work, you cannot sue anyone for the infringement.
DMCA takedowns only protect the third-party hosts of blogs, user-generated content sites, etc. So, for example, if you make a video and someone posts it to YouTube (without your permission or a license) and YouTube takes it down when you ask, you cannot sue YouTube; however, you can sue the person who put your work up there in the first place!
4. There is no need for a copyright notice on your work.
Although there is no requirement that you post a copyright notice with your work in order for the full protections of copyright to apply, if you do post one it can make a big difference in any infringement case. If there is a notice and your work gets infringed, that eliminates the possibility of “innocent infringement” by the infringer. Also, if the infringer removes your notice, you may have a claim under the DMCA for Copyright Management Information removal (the DMCA is not just about takedowns).
Oh, and if you use a copyright notice, make sure it’s in the correct form of “© + date of first publication (not creation!) + your name” so, for this post which is my copyrighted work (published by Heather with my permission), the correct notice would be “© 2012 Leslie Burns.”
5. If someone uses a photo on a personal blog or editorially, or if someone only uses a small part of a work, that use is Fair Use.
Fair Use is a much, much more complicated thing than most people think. Courts must look at all four factors in each case and those factors are not what they sound like to the lay person on top of it all: Purpose of the use; Nature of the use; Amount and substantiality of the work used; and, Impact on the potential marketability of the work. So, for example, while a non-commercial use is a plus in the Fair Use column, it is not close to conclusive. There are cases where a whole work being used was Fair Use, and others where a very small part of a work was not Fair Use. There simply are no hard and fast rules. You should definitely ask a lawyer before assuming something is or is not Fair Use.
By the way, this post is offered for educational and informational purposes only and should not be taken for legal advice. Yes, I have to say that.
Leslie Burns has been involved in commercial photography and the creative industries since the mid-1990s. After working on both sides of the business (buying and selling), she became a rep and later a marketing consultant to commercial photographers. Her oddly-named Burns Auto Parts has worked with photographers from San Diego to Boston, Denmark to South Africa, and even Australia. With three books under her belt, she got to fulfill her life-long dream when she earned an academic scholarship to attend law school. There she studied IP and small business law in order to help photographers and other creative professionals even more. She passed the CA Bar exam on her first try in 2011 and now both consults under the Burns Auto Parts brand and offers legal services as a part of the Law Offices of Carolyn E. Wright, aka photoattorney.com.