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.
A wonderful post – glad to see that there are informed minds out there like Leslie and Carolyn who can communicate these ideas and terms to the photographers, publishers, and users of creative content need to hear it and take it upon themselves to clear up and clarify on the myriad inaccurate interpretations of these ideas and terms. Thank you for sharing this!
Thanks so much for taking the time to read and comment. The information is so valuable, please do share with others.
Great information. Thank you for sharing!
hi! Thanks so much for reading the post. I think it is so important to share this information and Leslie Burns was so generous to help us out. Please do repost the post if you can. Hope all is well!
“So, although you need consideration for a release to be enforceable”
Incorrect. While I haven’t done a 50 state survey (it being a matter of state law), in NY, for example, you do not need consideration for a model release.
“If there is a notice and your work gets infringed, that eliminates the possibility of “innocent infringement” by the infringer.”
What if the infringer I found and am pursuing is not the one that stripped the copyright notice ? Is it your view that a notice on the original copy precludes all infringers from asserting the defense even if the infringer you are pursuing never saw the notice ?
You’ll have to convince Alito.
He was talking about 402(d) but the same problems present with 401(d).
I connected with Leslie and here was her reply – I hope you find it helpful.
“I’m in California and was taught that for a release you do need consideration. In fact, I checked my class notes before I wrote that. That being said, the statute most often invoked (§3344) is silent on the issue and there is no clear case law on-point either way on that specific issue. At least none I could find with a really basic search and I’m not going to spend my day doing a comprehensive search.
That all being said, why not just include the line (and compensation) and not worry about it? My point was that, according to my profs a release needs consideration but that consideration does not have to be of equal value at all. The compensation could be the privilege of being photographed by a professional or being permitted on-set for a large group shot or just about anything (a classic case says a peppercorn will suffice).
As for your other point, there is a big difference between sound and visual arts when it comes to copyright law so I would not say that Alito’s opinion holds any weight for a visual work. Besides that, the wording of 401(d) is really clear as it says that if a proper notice
“[…] appears on the published copy or copies to which a defendant in a copyright infringement suit had access[…]” then the defendant cannot claim the innocent infringement defense. So, the other side of that is that if the defendant can show that s/he only had access to a version of the work without notice, then s/he can claim that defense (still has to prove it, btw).
Overall, I think you need to take a breath. This article is not a treatise on any of these issues but rather a quick overview to try and help debunk some very wrong notions out there. As such, generalizations must be made. I know I hear more photographers worried that they have to provide equal value consideration for their releases to be valid, and that is not true. That was my point.”
“Overall, I think you need to take a breath. ”
I’ll give you a few tips having done this a heck of a lot longer.
First, throw out your law school notes.
Second, get yourself hired by a decent firm like Gibson Dunn where you can learn to practice law.
Third, in law the devil is always in the details and you need to get them correct and you need to be precise. You are no longer a law student.
Fourth, if you do not understand something, and you will often not, do not write “why not just include the line (and compensation) and not worry about it?.” Go learn WHY. In this case, why one would be ill-advised to draft a contract if the relevant statute requires only consent and no consideration.
Good luck. You are going to need it.
I’ve been doing this a lot longer than Ms. Burns has as well – she and I had a very civil discussion about one of these points in another forum. And that is my point: it was a *civil discussion.* Coming onto a forum where she’s *obviously* pointing out nonspecific best-practices and trying to make her look stupid – which, I assure you, she is *not* – in front of laypeople is petty and unprofessional. For the record, I think you’re right and she’s wrong, but on balance, I think that this probably is a best-practice for photographers who can’t afford to get an attorney to draft releases for them. Having an attorney draft the release for you is, of course, the actual best-practice, and I wish she had pointed that out more specifically.
We all have bad days – I got into this same point with the non-attorney author of a book on model releases and wasn’t much more civil than you were just then – but it does neither the profession nor those the advice is meant for any good to bull into a general-interest article with moot-court “gotchas.”
If one resides in another country, would it be prudent to register one’s works with the US Copyright office to gain the “protection” it offers? thanks
While I am an attorney, this is just a general observation, and not specific legal advice. Please seek an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.
In general, if you live in a country with which the US has a copyright treaty relationship (which is most of them) you don’t *have* to do this. However, it does offer several advantages and minimal (though not no) disadvantages. On balance, it’s probably a good idea for the average content creator to do this, especially with a work or works which could have substantial monetary value and/or offer an especially tempting target for copyright infringement.
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Remain calm. It is important to take ALL your meds …
I have been litigating, writing and lecturing about photography law for 36 years in NY, CA, MA, NJ, FL and a handful of other federal courts . I try real cases for real photographers in front of real judges and juries in real courtrooms.
Fredmont is correct and if anything understated the accurate criticism of the article. By definition in NY (and in many other states) a model release need not possess the essential elements needed in a contract because a model release is NOT a contract. Thus in NY (and numerous other states) consideration is not required nor is it prudent for photographer to include the word in a model release.
Model releases are governed by are predominantly, but NOT exclusively, governed by state laws. There are federal statutes like 1. The Lanham Act which may come into play when the name, image, photo, portrait or likeness of a celebrity is used without consent, 2 Federal Trade Commission rules regarding the use of models in false endorsements.of goods or services.
An attorney who purports to have knowledge of an area of law who has to consult her “class notes” is at best, a suspect source of legal information. When interviewing an attorney a photographer ought simply request a list of real copyright cases filed in federal courts where that lawyer actually represented a party. The Federal Courts in virtually any District in America allow for the searching of cases by the name of the attorney. An attorney whose experience in copyright and photo matters is limited to writing articles for laypeople is likely not a good choice to represent a photo or model in an actual litigation. Reading all the cases, statutes and law school notes in the wold is no substitute for actual, in court, trial experience in the local federal courthouse where your case will be heard.
Thank you taking the time to review the posts and to comment.