Hat Tip: Amateur Photographer
The image in question is one taken of soldiers posted at the Tomb of the Unknown Soldier and shows those soldiers standing duty during a storm. (It was taken by Karen Markert and can be seen at her Smug Mug site.)
The image went viral after appearing on Facebook and many web sites reused it without the photographer's permission. This includes Babble, a site owned by Disney. (It was removed from that site after the photographer contacted it.)
The key issue here is "after it appeared on Facebook."
The Facebooks terms allow for reuse of photographs posted on that site. If the image had been posted by the photographer, Disney and the other sites would have had the right to use the image without asking for permission first.
Unfortunately, it appears that the image was posted by someone else instead.
That person did not have the ability to grant the right to use the image, but there may have been no way for the sites that reused the image to know that.
This points out one of the dangers of using images found on Facebook. While the terms of service grants people the right to reuse images posted to Facebook, there is no way to guarantee that the person posting the image has the ability to grant that right.
The image may have been posted illegally by someone engaging in copyright violation. That person can not grant rights to use the image and anyone that uses the image faces legal jeopardy. (They probably aren't engaging in "willful" violations which limits their legal exposure to a certain extent.)
Two things to remember about Facebook images.
1) Posting images to Facebook yourself invites use of those images by others. From Facebook's TOS: you grant us a non-exclusive, transferable, sub-licensable,
royalty-free, worldwide license to use any IP content that you post on
or in connection with Facebook (IP License)
That is legalese for "We can do anything we want with the contents you upload" including granting others the right to use it free of charge.
Facebook has the right to grant anyone it pleases the ability to use Facebook content without paying for its use, and they basically do so.
Never post anything to Facebook you don't want to be reused by someone else.
2) While Facebook may grant the ability to reuse Facebook content, they can only grant that right if the person that initially posted also has the ability to grant that right.
That usually means the photographer when it comes to images.
Anyone sharing Facebook content should be careful. They should ascertain whether the individual that posted the content was the actual copyright holder. Reusing content posted by someone engaging in copyright violation will subject you to legally jeopardy as well.
A quick image search on Google is often all that is needed to discover the origin of in image when someone engages in image theft. Take a few minutes to protect yourself.
Showing posts with label legal issues. Show all posts
Showing posts with label legal issues. Show all posts
Tuesday, April 14, 2015
Sunday, April 12, 2015
Update to Story About Wedding Photographer Charging For Album Cover
Hat Tip: DIY Photography
Updating a story that dates back to January.
For those not familiar with the story. It involves a dispute between a wedding photographer and the couple. The photographer informed the couple that there was a charge for the cover to the wedding album that was part of the contract. The couple insisted that the photographer was contractually obligated to deliver a wedding album and they shold not have to pay for the cover.
And then the proverbial excrement hit the spinning cooling device.
The couple went public with the issue they had with the photographer, including news interviews.
The photographer has now sued for defamation asking for up to $1,000,000 in damages.
Personally, I think the photographer will have a very difficult time winning.
The couple said that the photographer wanted extra for the album cover. They also said she refused to deliver high-resolution copies of the wedding photos until they paid for the cover. They described it as having their images "held hostage".
From statements made by the photographer, those statements seem to be factual, although she would dispute the emotional charge of holding the images hostage. During the initial meeting after the wedding she did apparent inform the couple that there was a charge for the cover and that the images would not be delivered until the album was delivered.
She apparently expected no problems. This is how she normally handles weddings.
She did apparently try to reach an amicable agreement with the couple, including offering to absorb the cost of the cover. Those efforts were never mentioned by the couple.
The problem for the photographer is that those efforts don't change the initial situation, and the statements made by the couple factually match the initial situation.
Defamation requires more than just proving you were harmed by statements someone made about you. You must also prove the statements were false or made with reckless disregard for the truth. The photographer apparently can't do that.
The statements may have been made with malice, but they appear to have been factual (but not the entire story).
I think the only people winning when it comes to this lawsuit are the lawyers for both sides.
Updating a story that dates back to January.
For those not familiar with the story. It involves a dispute between a wedding photographer and the couple. The photographer informed the couple that there was a charge for the cover to the wedding album that was part of the contract. The couple insisted that the photographer was contractually obligated to deliver a wedding album and they shold not have to pay for the cover.
And then the proverbial excrement hit the spinning cooling device.
The couple went public with the issue they had with the photographer, including news interviews.
The photographer has now sued for defamation asking for up to $1,000,000 in damages.
Personally, I think the photographer will have a very difficult time winning.
The couple said that the photographer wanted extra for the album cover. They also said she refused to deliver high-resolution copies of the wedding photos until they paid for the cover. They described it as having their images "held hostage".
From statements made by the photographer, those statements seem to be factual, although she would dispute the emotional charge of holding the images hostage. During the initial meeting after the wedding she did apparent inform the couple that there was a charge for the cover and that the images would not be delivered until the album was delivered.
She apparently expected no problems. This is how she normally handles weddings.
She did apparently try to reach an amicable agreement with the couple, including offering to absorb the cost of the cover. Those efforts were never mentioned by the couple.
The problem for the photographer is that those efforts don't change the initial situation, and the statements made by the couple factually match the initial situation.
Defamation requires more than just proving you were harmed by statements someone made about you. You must also prove the statements were false or made with reckless disregard for the truth. The photographer apparently can't do that.
The statements may have been made with malice, but they appear to have been factual (but not the entire story).
I think the only people winning when it comes to this lawsuit are the lawyers for both sides.
Wednesday, February 11, 2015
Italy Confiscates "Lost" Da Vinci Painting
Hat Tip: The Telegraph
The painting in question is a portrait of Isabella d'Este and has been attributed by some art experts as having been painted by Leonardo Da Vinci. It turned up in a Swiss bank vault in 2013 along with hundreds of other art pieces.
The current owner of the painting was attempting to sell it when the Italian Police had it seized with the cooperation of Swiss officials.
The reason? The painting was "illegally exported" and needed to be secured before it was sold.
The assertion by Italian authorities that the painting was illegally exported seems to be extremely dubious. The painting was lost for 400 years. Nobody knew where it was until it turned up in Switzerland. There is no way for the Italian authorities to know when it was exported. The painting could very well have left Italy in the 17th century.
There is no official record of this painting. What proof could they possibly have that it was "illegally exported"?
They can't even prove it was ever in Italy.
Then there's this gem:
Unless we are dealing with a painting that has been stolen, I think it's fairly clear who owns it. That would be the person from which the Italian authorities seized it.
This case does point out some of the problematic art laws that exist in some countries.
The owner of a work of art can't treat it as their property. It is instead treated as public property and can be confiscated if the owner attempts to export it.
And it's not just Italy. This is true of any member of the Euro Union or signatories to 1970 UNESCO convention.
One big problem I have with these laws/treaty is that they are applied to works that predate them. Countries are using them to confiscate art that was exported from their countries before the laws went into effect.
There is something about that behavior that strikes me as just plain wrong.
The painting in question is a portrait of Isabella d'Este and has been attributed by some art experts as having been painted by Leonardo Da Vinci. It turned up in a Swiss bank vault in 2013 along with hundreds of other art pieces.
The current owner of the painting was attempting to sell it when the Italian Police had it seized with the cooperation of Swiss officials.
The reason? The painting was "illegally exported" and needed to be secured before it was sold.
The assertion by Italian authorities that the painting was illegally exported seems to be extremely dubious. The painting was lost for 400 years. Nobody knew where it was until it turned up in Switzerland. There is no way for the Italian authorities to know when it was exported. The painting could very well have left Italy in the 17th century.
There is no official record of this painting. What proof could they possibly have that it was "illegally exported"?
They can't even prove it was ever in Italy.
Then there's this gem:
“Once it arrives back in Italy, we will conduct further investigations to establish who really owns the work,” Italian prosecutors said in a statement.
Unless we are dealing with a painting that has been stolen, I think it's fairly clear who owns it. That would be the person from which the Italian authorities seized it.
This case does point out some of the problematic art laws that exist in some countries.
The owner of a work of art can't treat it as their property. It is instead treated as public property and can be confiscated if the owner attempts to export it.
And it's not just Italy. This is true of any member of the Euro Union or signatories to 1970 UNESCO convention.
One big problem I have with these laws/treaty is that they are applied to works that predate them. Countries are using them to confiscate art that was exported from their countries before the laws went into effect.
There is something about that behavior that strikes me as just plain wrong.
Saturday, January 17, 2015
Another Photographer Contract Story Making the Rounds
Earlier this week it was a story about a photographer being sued by the model he photographed.
Now, it's a wedding photographer demanding money for the cover of the wedding album.
The written contract between the photographer and couple includes deliver of a custom photo book. After the wedding, the photographer demanded additional money for the photo album's cover. The price was "at least" and additional $150.
The couple balked when it came to paying the extra fee and the photographer threatened to withhold delivery of the CD containing digital copies of the wedding photos that is included in the contract. The are also threatening to charge the couple an additional "archiving" fee of $250.
The couple went to the news media.
The best defense the photographer has been able to come up with: "It's in the order form."
Several problems for the photographer here.
1) The order form does not constitute the contract between the parties. The actual written contract does and that document obligates the photographer to deliver a photo album as part of the services paid for by the couple.
2) The photographer was in control of the contents of the contract. Under contract law, any ambiguity in contracts terms are resolved in favor of the other party. The theory here is that the party in control of writing the contract is the party in position to clear up any ambiguity.
The contract says the photographer must deliver a photo album, with specified dimensions and a certain number of pages and images. There is no mention in the contract when it comes to additional costs related to the album.
3) The price the photographer is charging. That's "at least" $150. For the cover. Do some shopping for custom photo albums. You can get an album with the specifics laid-out in the contract and a custom cover for less than the amount the photographer is charging for the cover alone.
That is not going to go over well if this goes to court. It photographer really looks as if they are double charging for the album
4) Industry standards. This also goes to determining what the party means by certain terms. In the case of any ambiguity, courts will look at the standard practice within the industry in question. From the NBC 5 story on this when talking to another wedding photographer "he has never heard of a photographer charging extra for an album 'cover'."
In other words, the industry standard is not to charge for the album's cover. Since that is not part of the contract the photographer has no business doing so.
5) Bad publicity. In an attempt to get an additional $150-$400 from the couple, the photographer is receiving thousands of dollars in negative publicity. Just losing one client as a result of the publicity will result in the photographer losing far more revenue than they will get out of the couple.
6) The photographer is also refusing to comply with the terms of the contract when threatening to withhold the CD they are obligated to send to the couple. This is not only breach of contract, it borders on extortion. Which is illegal.
The photographer is also charging for services that don't appear to be part of the contract with the "archiving" fee. If it's not part of the contract you can't charge for it. The other party has not agreed to pay for the service.
The photographer is on shaky legal ground, and now faces serious damage to their business reputation as a result of the bad publicity involved.
Now, it's a wedding photographer demanding money for the cover of the wedding album.
The written contract between the photographer and couple includes deliver of a custom photo book. After the wedding, the photographer demanded additional money for the photo album's cover. The price was "at least" and additional $150.
The couple balked when it came to paying the extra fee and the photographer threatened to withhold delivery of the CD containing digital copies of the wedding photos that is included in the contract. The are also threatening to charge the couple an additional "archiving" fee of $250.
The couple went to the news media.
The best defense the photographer has been able to come up with: "It's in the order form."
Several problems for the photographer here.
1) The order form does not constitute the contract between the parties. The actual written contract does and that document obligates the photographer to deliver a photo album as part of the services paid for by the couple.
2) The photographer was in control of the contents of the contract. Under contract law, any ambiguity in contracts terms are resolved in favor of the other party. The theory here is that the party in control of writing the contract is the party in position to clear up any ambiguity.
The contract says the photographer must deliver a photo album, with specified dimensions and a certain number of pages and images. There is no mention in the contract when it comes to additional costs related to the album.
3) The price the photographer is charging. That's "at least" $150. For the cover. Do some shopping for custom photo albums. You can get an album with the specifics laid-out in the contract and a custom cover for less than the amount the photographer is charging for the cover alone.
That is not going to go over well if this goes to court. It photographer really looks as if they are double charging for the album
4) Industry standards. This also goes to determining what the party means by certain terms. In the case of any ambiguity, courts will look at the standard practice within the industry in question. From the NBC 5 story on this when talking to another wedding photographer "he has never heard of a photographer charging extra for an album 'cover'."
In other words, the industry standard is not to charge for the album's cover. Since that is not part of the contract the photographer has no business doing so.
5) Bad publicity. In an attempt to get an additional $150-$400 from the couple, the photographer is receiving thousands of dollars in negative publicity. Just losing one client as a result of the publicity will result in the photographer losing far more revenue than they will get out of the couple.
6) The photographer is also refusing to comply with the terms of the contract when threatening to withhold the CD they are obligated to send to the couple. This is not only breach of contract, it borders on extortion. Which is illegal.
The photographer is also charging for services that don't appear to be part of the contract with the "archiving" fee. If it's not part of the contract you can't charge for it. The other party has not agreed to pay for the service.
The photographer is on shaky legal ground, and now faces serious damage to their business reputation as a result of the bad publicity involved.
Friday, January 16, 2015
Arkansas Law Maker Proposes Law Banning Drone Photography
Hat Tip: PetaPixel
A bill was introduced in the Arkansas legislature yesterday that would outlaw the use of drones to capture information from private property. This includes photographing that property but also includes recording sounds, capturing information about odors, etc.
It also prohibits the distribution of ownership of that information. (Including ownership and distribution by the press.)
The law then provides "exceptions" to the blanket prohibition.
Personally, I think the law would fail a Constitutional Challenge as it is currently written.
Any photographer interested in drone photography living in Arkansas might want to contact the state legislature.
A bill was introduced in the Arkansas legislature yesterday that would outlaw the use of drones to capture information from private property. This includes photographing that property but also includes recording sounds, capturing information about odors, etc.
It also prohibits the distribution of ownership of that information. (Including ownership and distribution by the press.)
The law then provides "exceptions" to the blanket prohibition.
Personally, I think the law would fail a Constitutional Challenge as it is currently written.
Any photographer interested in drone photography living in Arkansas might want to contact the state legislature.
Monday, January 12, 2015
Photographer Being Sued By Model
Photography related stories have been a bit spares lately, and I've been a little busy. I will post on any story that catches my eye if I get the chance.
That being said, this one caught my eye today over at PetaPixel:
Help: I Am Being Sued for Nearly $500,000 by a Model I Photographed!
You'll need to head over to PetaPixel for the details, but I'll post my response here.
The model's case against the photographer appears to rest on a supposed oral agreement between the two of them. The problem for the model is that she signed a model release allowing the photographer to use the images in the way the photographer used them (uploading to a stock images site for sale). Her case rests on an oral agreement that the photographer denies making, that being an agreement that the images would not be used for certain purposes, primarily related to porn.
The photographer states he would not have made that promise as there was no way for him to ensure the promise was kept.
Quickly skimming the complaint results in contradictory statements made by the model.
Paragraph 37) declares that the model release included an integration and/or merger clause. The following paragraph states that is did not contain such a clause.
The inclusion of such a clause is extremely important in this case. The clause states that the written document includes all the terms agreed to by the parties. This specifically excludes any terms not put in writing and included with the contract.
An integration or merger clause would prevent the model from suing based on an oral agreement.
I suspect that there is no integration clause in this case. It does not appear to be included in any standard model release form available on the Internet.
It might be time to include one.
The photographer is currently raising funds for his legal defense.
He apparently did have liability insurance, but the company is refusing his attempts to get them to fund his legal expenses. (This is from the comments on the PetaPexel story.)
Two things to take away from this story:
1) Liability Insurance is only as useful as the Insurer's reliability. Insurance with a company that refuses to pay out is worse than no insurance at all. You're out premiums in addition to any other losses
2) Standard contracts are not necessarily the best way to go. In this case, modifying the contract to exclude oral agreements might be a good idea.
That being said, this one caught my eye today over at PetaPixel:
Help: I Am Being Sued for Nearly $500,000 by a Model I Photographed!
You'll need to head over to PetaPixel for the details, but I'll post my response here.
The model's case against the photographer appears to rest on a supposed oral agreement between the two of them. The problem for the model is that she signed a model release allowing the photographer to use the images in the way the photographer used them (uploading to a stock images site for sale). Her case rests on an oral agreement that the photographer denies making, that being an agreement that the images would not be used for certain purposes, primarily related to porn.
The photographer states he would not have made that promise as there was no way for him to ensure the promise was kept.
Quickly skimming the complaint results in contradictory statements made by the model.
Paragraph 37) declares that the model release included an integration and/or merger clause. The following paragraph states that is did not contain such a clause.
The inclusion of such a clause is extremely important in this case. The clause states that the written document includes all the terms agreed to by the parties. This specifically excludes any terms not put in writing and included with the contract.
An integration or merger clause would prevent the model from suing based on an oral agreement.
I suspect that there is no integration clause in this case. It does not appear to be included in any standard model release form available on the Internet.
It might be time to include one.
The photographer is currently raising funds for his legal defense.
He apparently did have liability insurance, but the company is refusing his attempts to get them to fund his legal expenses. (This is from the comments on the PetaPexel story.)
Two things to take away from this story:
1) Liability Insurance is only as useful as the Insurer's reliability. Insurance with a company that refuses to pay out is worse than no insurance at all. You're out premiums in addition to any other losses
2) Standard contracts are not necessarily the best way to go. In this case, modifying the contract to exclude oral agreements might be a good idea.
Thursday, December 18, 2014
All Your Photos Are Belong to Us
I finally get you use the old Zero Wing reference.
Personally, I think it's really appropriate as the original phrase makes about as much sense as the latest move from Time, Inc. UK
The company has initiated a new contract for photography freelancers that goes into effect January 1. Any photography working on assignment for one of the 60 niche publications owned by Time Inc. UK will have to surrender all rights to those images to the company. (The weekly Time news magazine is not effected by the new contract terms, at least not yet.)
This is just the latest trend in big companies showing little respect for professional photographers. Yahoo's CEO annoyed photographers with her comments, Getty engaged in blatant copyright theft as well as other actions that annoyed contributors and various media outlets have laid off part or all of their photo journalists staff.
Now, Time, Inc. UK is telling freelancers they are going to treat them like employees in regards to copyright, (as a general rule, the work product of employees belongs to the employer) but treating them as an independent contractor for all other purposes. Meaning the photographer must take care of expenses, taxes, etc.
What professional photographer will be willing to work freelance if they have to take all the risks and except all the expenses if they then have to tuen over all rights to the images produced?
That's the worst of both worlds.
I think all this stems from the prevalence of camera phones. With everyone taking pictures with their phones, all these CEOs have a mentality that there is nothing unique about being a professional photographer.
They're wrong.
It's the same distinction between someone that plays baseball with the boys on the weekend and someone playing for a Major League ball club. There is a reason those weekend warriors don't get paid $20 million a year and some professional baseball players do.
The professional brings a level of talent and a dedication to the profession that separates them from those that don't.
The most annoying thing is that many of the companies involved are media companies that make money by producing a professional level product. (Magazines and stock photos). How do they expect to continue doing that if they don't treat the people that actually take those photos as professionals?
Personally, I think it's really appropriate as the original phrase makes about as much sense as the latest move from Time, Inc. UK
The company has initiated a new contract for photography freelancers that goes into effect January 1. Any photography working on assignment for one of the 60 niche publications owned by Time Inc. UK will have to surrender all rights to those images to the company. (The weekly Time news magazine is not effected by the new contract terms, at least not yet.)
This is just the latest trend in big companies showing little respect for professional photographers. Yahoo's CEO annoyed photographers with her comments, Getty engaged in blatant copyright theft as well as other actions that annoyed contributors and various media outlets have laid off part or all of their photo journalists staff.
Now, Time, Inc. UK is telling freelancers they are going to treat them like employees in regards to copyright, (as a general rule, the work product of employees belongs to the employer) but treating them as an independent contractor for all other purposes. Meaning the photographer must take care of expenses, taxes, etc.
What professional photographer will be willing to work freelance if they have to take all the risks and except all the expenses if they then have to tuen over all rights to the images produced?
That's the worst of both worlds.
I think all this stems from the prevalence of camera phones. With everyone taking pictures with their phones, all these CEOs have a mentality that there is nothing unique about being a professional photographer.
They're wrong.
It's the same distinction between someone that plays baseball with the boys on the weekend and someone playing for a Major League ball club. There is a reason those weekend warriors don't get paid $20 million a year and some professional baseball players do.
The professional brings a level of talent and a dedication to the profession that separates them from those that don't.
The most annoying thing is that many of the companies involved are media companies that make money by producing a professional level product. (Magazines and stock photos). How do they expect to continue doing that if they don't treat the people that actually take those photos as professionals?
Thursday, November 20, 2014
Flash-Maker Metz Declares Bankruptcy
Hat Tip: Imaging Resource
For those that aren't familiar with Metz, it's a German company that produces televisions and camera flash units. It officially declared bankruptcy in October.
The Imaging Resource and Reuters articles both describe the situation as Metz filing for insolvency. Technically, a company does not file for insolvency. Insolvency is the situation that occurs when a company is unable to meet it's financial obligations. Metz was insolvent before taking any court actions.
The more accurate description would be that Metz filed for insolvency protection.
In the United States, this requires starting bankruptcy proceedings in a court of law (also known as declaring bankruptcy.)
Yes, I know. I'm splitting hairs.
I have a legal background and enjoy writing about legal matters when they come up.
Metz is apparently pursuing a restructuring instead of ceasing to do business. This is the equivalent of filing for Chapter 11 protection in the US. This means support should still be available to those that currently own a Metz product.
For those that aren't familiar with Metz, it's a German company that produces televisions and camera flash units. It officially declared bankruptcy in October.
The Imaging Resource and Reuters articles both describe the situation as Metz filing for insolvency. Technically, a company does not file for insolvency. Insolvency is the situation that occurs when a company is unable to meet it's financial obligations. Metz was insolvent before taking any court actions.
The more accurate description would be that Metz filed for insolvency protection.
In the United States, this requires starting bankruptcy proceedings in a court of law (also known as declaring bankruptcy.)
Yes, I know. I'm splitting hairs.
I have a legal background and enjoy writing about legal matters when they come up.
Metz is apparently pursuing a restructuring instead of ceasing to do business. This is the equivalent of filing for Chapter 11 protection in the US. This means support should still be available to those that currently own a Metz product.
Wednesday, November 19, 2014
Use Your Cell Phone for Model Release Form
PetaPixel has an article today on a new Model Release Template available from Shake.
There are accompanying iOS and Android apps. The apps allow the photographer to use the phone for signatures and allow photos of the model that signed the release to be attached to the signed contract.
The contract can also be sent electronically to the other party for their signature.
This is something that any photographer that does a great deal of work requiring model releases should look into, as the template and apps allow the photographer to ensure they always had a contract ready for signature and keep signed contracts organized.
Head over to PetaPixel's post for download links and a video tutorial on the app.
There are accompanying iOS and Android apps. The apps allow the photographer to use the phone for signatures and allow photos of the model that signed the release to be attached to the signed contract.
The contract can also be sent electronically to the other party for their signature.
This is something that any photographer that does a great deal of work requiring model releases should look into, as the template and apps allow the photographer to ensure they always had a contract ready for signature and keep signed contracts organized.
Head over to PetaPixel's post for download links and a video tutorial on the app.
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