Does offering an embed feature violate copyright law?

Question

I know this is not a legal site, but this is closely related to photography so I hope this question can stay here. I am the owner and founder of a wildlife photo site, which I'll only plug here because its relevant for the question:

http://www.jungledragon.com

It's a photo sharing site (plus a whole lot more not relevant for now) where members upload their photos. Myself and the server are situated in the Netherlands, Europe. I'm just a guy with a website and have about zero capacity to withstand legal issues.

Yesterday I implemented a new feature that allows anyone (member or not) to embed a photo on sites external to JungleDragon, say a blog or forum. It does what you expect from other photo services: spit out an embed code that one can copy and paste.

I deeply appreciate the rights of photo owners, and therefore had taken the following measures:

• The size of the embedded photos is seriously constrained
• Although this feature allows photos to be displayed on other sites, the photo file itself still comes from JungleDragon. In addition, clicking it brings the user back to the original at JungleDragon.
• Members who do not appreciate their photos being embedded, can disable it globally, yet the default is that it is enabled (opt-out)
• Unrelated to this embed thing, right-clicking photos is disabled on the site

From my perspective, I have struck a reasonable balance between the control photo owners have over their content and the value of promoting content outside the site itself. Yet I have received some feedback that it is probably better to have embedding disabled by default.

It is absolutely safer, but it will also largely kill the embedding feature, as few users ever change their default settings.

Time to raise my main question: am I subject to any legal issues given the situation described above?

Of course I did a little digging myself, and found this interesting thread concerning 500px's embed feature (which cannot be disabled at all, hence it less reasonable than my proposal):

http://www.pixiq.com/article/500px-encouraging-copyright-theft

It seems there is no real consensus on that thread. 500px claims that thumbnailing is "fair use" and that "any photo posted on the web is trivial to reproduce". I would think that if such a popular service can get away with this, my solution which gives more control to photo owners is a safe bet?

The other thought I'm having concerns how embedding relates to other ways of sharing content. For example, like many sites, I have a social sharing widget on the site, allowing anyone to share a photo (preview) on Facebook and Twitter. It's a common practice and it happens without the photo owner's explicit consent, yet I don't hear anyone complaining about that? Another example is RSS, also available on many sites (including JungleDragon) and what about Google Image search. All of these services reproduce (display) a photo outside its original context without asking for permission.

Sorry if this question is a bit messy, but I'm trying to do good for photo owners whilst also trying to do good for the site. What are your thoughts?

Asked by Ferdy

Answer

IANAL - this is effectively-amateur-perspective comment:

What you seek to do seems fair and reasonable and no right minded person could take much offence at it. HOWEVER in the US and increasingly elsewhere such things may make you liable if a user used the means that you provided to violate copyright provisions. In the US The ?? Digital Millenium Copyright Act is probably what you need to consider. In NEw Zealand (my country) recent or proposed laws have provided protection to copyright owners with specific obligations on ISP's and site providers to ensure that copyright is no violated and specific assignment of responsibility if it is.

I am certainly not suggesting that this rough outline should be used as a basis for your actions - but it may point you towards areas which need to be considered, even in a European context.

The references below all relate to the US DMCA but seem likely to provide a good feel for how the relevant rights and desires of vendors, users and the people in the middle (ISPs, photo site providers, ...) all go together.

---

Wikipedia- DMCA

DMCA summary by US Copyright Office {USCO}

UCLA comments & links

Harvard University summary with links They note:

• The Digital Millennium Copyright Act ("DMCA") of 1998 endeavors to balance the interests of internet service providers and copyright owners when copyright infringement occurs in the digital environment. The DMCA protects internet service providers from liability for copyright infringement by their users, if the internet service provider meets certain statutory requirements.
  To fall within the protection of the DMCA, an internet service provider must, among other things, take certain steps when it receives notice that infringing material resides on its network; adopt and implement a policy that provides for termination in appropriate circumstances of users who are repeat infringers; and accommodate standard technical measures that are used by copyright owners to identify and protect copyrighted works.

  The DMCA protects only the internet service provider, and not the users of its system who infringe copyright.

Related:

DMCA USCO - related

Educause on DMCA

Useful: Unintended consequences of DMCA . They note

• This document collects reported cases where the anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors. It will be updated from time to time as additional cases come to light. Previous versions remain available.

Example action

Fair Use:

Useful Fair use and the DMCA

Useful Columbia edu paper on Fair Use & DMCA

Apple DRM legal ruling, 2010 - "Jailbreaks" are Fair Use

Fair use victories on the DMCA

Stanford

Answered by Russell McMahon

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What are the legalities of accepting payments as a freelance photographer?

Question

Someone I know has been into photography and has recently expressed interest in freelancing.

There are a lot of questions she has, but the most pressing one is how to get paid. I have advised her to not charge too low as her pictures are good (and I don't want her to diminish the value of local photogs).

The problem is how to accept payments and what are some gotcha legalities.

What about cash? Should she provide some sort of "invoice" to customers so there is a proper record? How about checks? She plans on using her name, so I don't think she needs a DBA (doing business as) but I may be mistaken, to operate so how would one make a check to her?

PayPal seems interesting too but would she need a separate "business" account? I've browsed photo.SE for the last few hours but didn't find anything specific to accepting payment.

Asked by viper1092

Answer

First research YOUR market! Go to your local City Hall (they will know everything, hopefully)! Register your business. Look for a lawyer (contracts, etc), Financial Adviser (set up Quickbooks or whatever), Register with local Chamber of Commerce, Ask established photographers to second shot, Network and make friends. And lastly BE AWESOME! and take great pictures.

MOST IMPORTANT: IMO, running photography business is 20% photography 80% business.

:)

What about cash? Should she provide some sort of "invoice" to customers so there is a proper record?

Never take cash. Write/sign a contract for EVERYTHING!

Answered by Alen

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How to respond to requests to commercially use one's photos without compensation?

Question

I am an amateur photographer and every now and then, I get an email along these lines:

Hi there, I really like your photo of X [LINK] and would like to use it in my/our magazine/brochure/website. Unfortunately I don't have a budget to pay you for the use of the image. Would you still be ok if I used this photo?

I always like when people want to use my photos, but I don't allow commercial use without permission. I license them under the Creative Commons BY-NC-SA license.
If it's clearly a commercial project they want to use the photo for, I feel like I should be paid.

I never quite know what's a good way to respond.

1. Do you explain why you think you should be compensated or do you just say that they can purchase it for a certain amount of money?
2. What's a good price to ask (I guess that's really hard to answer, but a minimum price for example, would be really handy to know)?
3. Do you publicly list your prices somewhere, so people can find out themselves without asking you?
4. Is it realistic at all to think people are willing to pay for photos?

I would like to sell my photo and I don't want to turn someone down right away with completely unrealistic prices and the like. However, if they are not willing to compensate me at all, I am ok with them not using my photo.

Asked by Daniel Pietzsch

Answer

You absolutely should be paid. And not only that, you absolutely have the right to protect your work. There are dangers associated with offering "free use" of your work, as once you do, you can never really tell how far your work may be distributed "for free". The company you license it to may turn around and license another company to create some design with it. Once its out "in the corporate wild", you could lose control of it entirely.

As for "not having a budget", doubtful. I worked for a company that did a lot of graphic design for a couple years. I hated the company as they practiced ethically and morally borderline and often out right wrong practices on an all too frequent basis. One of their tactics was to search for photography online and when they found something they liked, they would send out a sob-story email like the one you got. They leeched more work off of more desperate and unaware photographers than I could count. Whenever they couldn't get something for free, they would either offer money, or find something not free and pay for it. They certainly had a budget for such things, and a large one at that.

Your work is you. It's your style. It's an expression of you. It should require compensation for use. Don't let the snide, underhanded tactics of a greedy corporation leave you without control of your art or the compensation you deserve. Ask for reasonable compensation, and make sure you supply a proper commercial use license to limit how far they can "internally distribute" you work, so you don't lose control over who actually has what rights to it.

So, to your specific points:

1. Simply ask that they pay for its use, and be clear, in writing with a proper license, about what "use" means. Don't give them freedom to use it as they please. Make sure they use it only for the specific case they need it for right now. Make them pay you again for additional use for different purposes. Alternatively, ask for a LOT of money for the right to use it as they please for as long as they please (Perpetual, limitless.)

2. "How much" is pretty subjective. Its something you could determine based on the company and their intended usage. You could simply put together a standard price list for your work and various usage scenarios. Factor in your effort, how much value you would give the photo yourself, and how much use the company expects to get. If they only expect to use it in one specific case for one specific thing that may have a limited timeframe of existence, you might ask for a lower price. If they expect perpetual usage rights without limitation, and/or the right to license its use to someone else who may use it in work done for the company, you should ask for much more. Perpetual usage is the holy grail of usage rights...it really shouldn't come cheap. How "cheap" or "expensive" depends on how you think your work compares to top notch professional work. You'd probably need to do some research to figure out where your work might fit on a "pricing scale". If you have never sold anything before and think you might have a hard time selling it at what you would consider a fair price, consider lowering your prices a bit until you have an established reputation.

3. Entirely up to you. Depends on how you want to sell your work, either on a case-by-case basis, or as a key part of your professional work as a photographer. If the purpose of your photography is to provide high quality stock photos for fixed prices for specific terms of usage, you probably want to create a web site that has examples of your work and your price list. One thing to note...NOT having a price list is often beneficial, as you can negotiate price on a sale by sale basis. Some companies may be willing to pay more, some are going to be rather stingy. If you are just starting out, you might find a lot of value in keeping your prices fluid and learn what the sweet spot is that sells the most work at the highest possible price. Once you have established an average, you'll be better equipped to produce a readily available price list.

4. Absolutely. The amount you might get for photography today is subjective, and less than it was a number of years ago, which was itself significantly less than a number of years before that (before the age of ubiquitous, cheap digital stock and oppressive bullies like Getty Images and co.) A few years from now you may find that its harder to get as good a price as you might want today. Sadly, the state of affairs with for-pay photography is there are too many cheap photographers who just want a microsecond of fame and recognition, and are all too willing to give their work up for free. That has put some severe downward pressure on prices for photographic work. You can probably reverse that trend for your own work if you establish yourself as someone who produces very high quality photography worthy of the price. However yes...it is realistic to think that people and companies will pay for photography these days.

Answered by jrista

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What smartphone model release app do pros use?

Question

I am looking for an app that will help me with model releases. I have come across Easy Release which looks like a great product yet what are the pros using when it comes to shooting the photo and then getting a model release? (I am looking to use this for street photograph.)

Note: I am using iOS yet would prefer answers that cover at least iOS and Android.

Asked by Lynda

Answer

I came across many choices when searching and I have listed them below. I chose Easy Release due to several reasons one of which is was designed by a professional photographer. Also when researching individual programs I found many, many positive reviews for Easy Release. The rest had mixed reviews if any at all. All listed work with iOS and some have Android versions.

Release Me

iRelease

iD Release - This is the only Free App

Easy Release

mRelease

Model Release

Photographers Contract Maker

I came across this information at iStock. It said "iStock does not accept electronic model releases." This info is dated 2010; I have contacted iStock to see if their policy has changed and will update this when I hear from iStock.

Hope this information can help someone in the future.

Answered by Lynda

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Model Release - APP for Smartphone?

Question

I am looking for an app that will help me with model releases. I have come across Easy Release which looks like a great product yet what are the pros using when it comes to shooting the photo and then getting a model release? (I am looking to use this for street photograph.)

Note: I am using iOS yet would prefer answers that cover at least iOS and Android.

Asked by Lynda

Answer

I came across many choices when searching and I have listed them below. I chose Easy Release due to several reasons one of which is was designed by a professional photographer. Also when researching individual programs I found many, many positive reviews for Easy Release. The rest had mixed reviews if any at all. All listed work with iOS and some have Android versions.

Release Me

iRelease

iD Release - This is the only Free App

Easy Release

mRelease

Model Release

Photographers Contract Maker

I came across this information at iStock. It said "iStock does not accept electronic model releases." This info is dated 2010; I have contacted iStock to see if their policy has changed and will update this when I hear from iStock.

Hope this information can help someone in the future.

Answered by Lynda

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Will electronic or digital model releases or contracts hold up in court?

Question

Are there any legal examples where a digital model release/contracts was upheld in court? I have read about digital signatures, but am curious in relation to how it works with, let's say, an app that has a person use their finger to sign a model release on a smartphone.

Could that be upheld in court?

Asked by Lynda

Answer

After doing some research I came across this information that I believe would apply to apps used to obtain electronic signatures and any other form of electronic signatures.

From Wikipedia:

In 1996 the United Nations published the UNCITRAL Model Law on Electronic Commerce. The model law was highly influential in the development of electronic signature laws around the world, including in the US.

The U.S. Code defines an electronic signature for the purpose of US law as "an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record." It may be an electronic transmission of the document which contains the signature, as in the case of facsimile transmissions, or it may be encoded message, such as telegraphy using Morse code.

In the United States, the definition of what qualifies as an electronic signature is wide and is set out in the Uniform Electronic Transactions Act ("UETA") released by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1999. It was influenced by ABA committee white papers and the uniform law promulgated by NCCUSL. Under UETA, the term means "an electronic sound, symbol, or process, attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record." This definition and many other core concepts of UETA are echoed in the U.S. ESign Act of 2000. 47 US states, the District of Columbia, and the US Virgin Islands have enacted UETA. Only New York, Washington State, and Illinois have not enacted UETA, but each of those states has adopted its own electronic signatures statute.

Canadian law (PIPEDA) attempts to clarify the situation by first defining a generic electronic signature as "a signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with an electronic document", then defining a secure electronic signature as an electronic signature with specific properties. PIPEDA's secure electronic signature regulations refine the definition as being a digital signature applied and verified in a specific manner.

In the European Union, the EU Directive on Electronic Signatures or the EU Electronic Signatures Directive was published in the EC Official Journal, as Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (OJ No L 13 p. 12 19/1/2000).

More information can be found on the Wikipedia Page on Electronic Signatures

The following two links come from a website called EchoSign, an electronic signature company. The two links provide information on the legality of electronic signatures though you will see some company branding and information. (For clarification here, I have not used EchoSign nor am I affiliated with them.)

Here is a case, Barwick v. GEICO, that electronic signature was upheld. (Does not have to do with photography but the same theory applies to electronic signatures for model releases/contracts.)

This document mentions the laws for the US, EU, UK, Canada, and Mexico.

I contacted the makers of Easy Release asking if there are any legal cases in regards to electronic model releases and this was the response I received:

I'm not aware of any direct case history. Getty Images and Alamy have approved us for use by their contributor photographers; Getty did so after a ten month worldwide legal review.

Answered by Lynda

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What legal restrictions are there on the use of logos in photos?

Question

This question is similar to my other question however this has to do with Logos.

If I am in public (on public property) and take a photo that has a recognizable company logo in it what rights do I have to reuse the photo with the logo in it? (Commercially via the web.) I know this answer could depend on the way the logo is used. If the logo is used in a positive light how does that change if used in a negative light?

One example would be this:

I have a photo of two trucks both with logos of ice cream companies. In front of the trucks is an ambulance (with its lights on). The placement of the trucks with the ambulance is amusing as it indicates eating ice cream can get you a visit from an ambulance. I would use the photo in a amusing way though I know if looked at wrong it can be taken in a negative way.

Notes: I am based in Colorado, USA but will accept answers that can apply worldwide. Also I know a lawyer could provide a definitive answer, however, I am looking for a general idea.

Asked by Lynda

Answer

Trademarks can be used to describe the thing they name by people other than the trademark owner. That is, you don't have to say "that annual 26.2 mile race in the capital of Massachusetts" even though the Boston Athletic Association controls the "Boston Marathon" trademark. Photographs of things with logos on them can be analogous — you may take a photo of a Starbucks sign. You can't, however, try to mislead coffee customers with your photo.

Remember, trademark laws are consumer protection laws. They're there to prevent fraud. They are not intended as a way for people to monetize phrases or to take control of a portion of the public sphere.

Limiting photographs just because they happen to have logos would have a chilling effect on free speech and be directly contradictory to the First Amendment.

In your particular case, your photograph is a commentary on the product — as you describe it, the juxtaposition of the ambulance and the ice cream store reflects on the health of the ice cream sold — this is clearly a speech issue, and while I am not a lawyer it is my opinion as a citizen that you have a very strong free speech argument. There are McDonald's trademarks all over the film Super Size Me, and the company can't be very happy about it, but that's okay.

Stock photos are a special case, because a) the photos are likely to be use commercially, b) customers want generic so other logos don't confuse the message, and c) they're probably over-paranoid and not interested in getting in a lawsuit over your free speech rights.

Answered by mattdm

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Use of Logos in Photo

Question

This question is similar to my other question however this has to do with Logos.

If I am in public (on public property) and take a photo that has a recognizable company logo in it what rights do I have to reuse the photo with the logo in it? (Commercially via the web.) I know this answer could depend on the way the logo is used. If the logo is used in a positive light how does that change if used in a negative light?

One example would be this:

I have a photo of two trucks both with logos of ice cream companies. In front of the trucks is an ambulance (with its lights on). The placement of the trucks with the ambulance is amusing as it indicates eating ice cream can get you a visit from an ambulance. I would use the photo in a amusing way though I know if looked at wrong it can be taken in a negative way.

Notes: I am based in Colorado, USA but will accept answers that can apply worldwide. Also I know a lawyer could provide a definitive answer, however, I am looking for a general idea.

Asked by Lynda

Answer

Trademarks can be used to describe the thing they name by people other than the trademark owner. That is, you don't have to say "that annual 26.2 mile race in the capital of Massachusetts" even though the Boston Athletic Association controls the "Boston Marathon" trademark. Photographs of things with logos on them can be analogous — you may take a photo of a Starbucks sign. You can't, however, try to mislead coffee customers with your photo.

Remember, trademark laws are consumer protection laws. They're there to prevent fraud. They are not intended as a way for people to monitize phrases or to take control of a portion of the public sphere.

Limiting photographs just because they happen to have logos would have a chilling effect on free speech and be directly contradictory to the First Amendment.

Stock photos are a special case, because a) the photos are likely to be use commercially, b) customers want generic so other logos don't confuse the message, and c) they're probably over-paranoid and not interested in getting in a lawsuit over your free speech rights.

Answered by mattdm

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Personality Rights

Question

I have read many question here on SE looking for this answer and if I missed a question please point me in the right direction. Now for the question:

If I am in a public venue (be it street or public building) and take a photo that has a person who is identifiable in the photo what rights do I have as a photographer to use that photo commercially.

Notes: The photo is not used for print but used online (commercially). I am based in Colorado, USA but will accept answers that can apply worldwide. Also I know a lawyer could provide a definitive answer, however, I am looking for a general idea.

With that said I know the best solution would be to always get permission if possible. What is the best way to obtain those rights from a person? (I don't believe you would carry with you a model release with you when you go shooting in public.)

Asked by Lynda

Answer

If you are a commercial photographer, then yes you would carry model releases with you, or use an app to record the information. Otherwise you would get the person's name and contact details and obtain permission later.

You have the right to take photos on public property, in public places where people don't have the expectation of privacy.

That doesn't give you the right to take those images and use them for commercial/advertising purposes without consent. By commercial I mean putting them on a billboard or website selling a product. You might be able to sell your prints as artwork, or enter them in competitions, if the rules of the competition didn't require waivers, which most seem to do these days.

There is a country-specific table of rights, including commercial here

A good reference on the subject here, which includes

Typically, before you can use a picture of someone in an advertising campaign or for other commercial purposes, you need to have the right to copy the photograph (a copyright license from the photographer) and the right to use the individual’s image (typically achieved with a “Model Release” from the individual).

Answered by MikeW

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Publishing photos in UK

Question

Does anyone know the legal aspects for the following situation? At a sports competition someone took photos of me. They have since posted them on Facebook and on a commercial website, where anyone can buy them.

My objection is that I don't want photos of me published without my prior consent. Needless to say, I never gave them my consent. I don't object to them selling the pictures (except that by selling they also publish and distribute).

Is it reasonable (by UK or European law) for me to ask them to take the photos down?

• Given that the competition was open to the public (as spectators) does this change my right on images of me?
• I am not a public figure ;-)
• The competition took place indoors on private property.

If you can please provide links/references to the relevant laws/court decisions.

---

This is a question about a legal topic. I realise that all answers will not be legal advice.

Asked by Unapiedra

Answer

It seems that the case is reasonably clear. Following Wikimedia's take on things [2], I could expect to be photographed during the competition and therefore the venue could be classified as public.

For the publication of that photo the rules are slightly harder but according to [1] publication seems to be allowed. I am not clear on the commercial use of that photograph. I haven't found a source for that but it might be legal in the UK. If you have an answer to the commercial use than please post your own answer.

---

Academically interesting is the following:

Photographs of people may also be subject to the Data Protection Act, which controls the "processing" of "personal data", that is, data relating to an individual and from which the individual can be identified. There has not yet been a court case that has determined whether or not an image of a person, [...] , would be caught by the Act [...].[1]

This is related directly to my objection as I see myself being at the competition and my liking of that sport as personal data. Anyway, I will leave it at that and accept that their acting is legal.

[1] http://www.sirimo.co.uk/2009/05/14/uk-photographers-rights-v2/ --> Download the PDF. [2] http://commons.wikimedia.org/wiki/Commons:Photographs_of_identifiable_people

TL;DR Taking and publishing of pictures on a public competition is allowed.

Answered by Unapiedra

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Is it legal to stop me from taking photos in temples in India?

Question

I live in India, in the state of Tamil Nadu.

Here, some temples do not allow visitors to take pictures or videos. Is that legal, to stop me from taking photos? So many adventures and lovable statues in there!

Temples are public and are managed by the government. Few temples are privately owned. And I am not a photo seller — it's my hobby.

Can I take photos of people in these public places? Is there any law either for or against my rights as a photographer? When I take a picture of people in public, what should I know?

Answer

Yes. See this site:

http://www.krages.com/phoright.htm

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Is that Legal to stop me Take photos?

Question

When I take a picture of people in public, what should I know?.

Can I take photos of people in public places? Is any Law there?.

Up Dated Question -

Hi all,

I am living in India,. My State is Tamil Nadu.

Here Some Temples are not allow to take Pictures and Videos. Is that Legal to stop me Take photos. So many adventures and lovable stachu in There.

Temples are public and its managed by Government. Few Temples are Private. And I am not a photo seller Its my Hobby.

Answer

Yes. See this site:

http://www.krages.com/phoright.htm

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Is it legal for me to take pictures of commercial/military aircraft taking off and landing?

Question

NOTE: I'm in the United States so for me this question is mostly about 'is it legal' in the US...

I often drive down to one of the access roads outside the fence line of the international airport in my town and take pictures of the commercial jets taking off and landing, the control tower, the ground equipment, etc. Although my purpose is completely benign (just like aircraft and aircraft related things), I've done this on a number of occasions, and I've never had guys in black Kevlar with H&Ks show up to haul me in for threatening 'Homeland Security,' I have wondered if what I'm doing is actually legal, or if I just 'haven't been caught yet.' Thoughts?

Assuming it is legal, if I were to do the exact same thing taking pictures of the military aircraft outside the fence line at the Air Force base in my town, can I expect a visit from FBI agents sporting black suits, dark sunglasses, and no sense of humor?

Answer

There's only one thing in this related field that is illegal, so far as I know. It is illegal to take pictures of a military base, even if it's from off that base (Unless there is a special event going on, like an air show). But if the area isn't a secure facility, you should be fine. My rule of thumb would be, if there's any buildings at all, you probably shouldn't be photographing, but if you can't see any buildings, you should be fine.

Legal Handbook for Photographers: The Rights and Liabilities of Making Images says that experimental craft and crashes might also be off limits. Actually, this handbook seems to be really good, I might have to buy that book... It agrees with everything I've picked up along the way, and has a lot more details as well.

As far as commercial facilities, there is no law prohibiting it at all, so far as I know. It wouldn't make much sense either.

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Why do event organisers have the right to restrict the activities of photographers?

Question

Many public events such as sports, concerts, etc have restrictive policies that limit the ability of the audience to take photographs. These policies can vary from an outright ban to a ban on the use of 'professional' equipment. See also this discussion.

So my question is this: what gives the organising companies the right to enforce photographic restrictions on, what is after all, visible to a public audience?

Now I can understand their rights to make restrictions in purely private, by invitation only, events. But when any member of the public can choose to attend do the organisers still have rights to dictate the behaviour of members of the public?

Answer

You're entering into a contract - you agree to follow their rules, and they agree to let you into the concert. Any event that requires a ticket or is held on private property isn't truly a "public" event, and the property holders or event organizers can set their own rules.

It's much like this website. Yes, you may use this website for free, and it's publicly accessible, but it does have a legally binding contract that you agreed to when you made an account.

(IANAL, TINLA)

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What workflow should I use for managing model releases?

Question

Managing and collecting model releases might become a tiresome job, specially for hobby photographers like me. Asking a stranger to sign a paper might become trick in most cases, specially in a 3rd world country where most people cannot read written english. So, is there any effecient workflow for collecting and managing model releases? Do I ask for the sign before or after the shooting session? Also, in case of a complete stranger in a street how do I approach? Do I need to collect model releases for every person I shoot even without knowing whether I will use their image in a commercial way or not?

Answer

Images used for news or artistic works do not normally require a model release. In the first case, it would be unrealistic to expect a newspaper, for example, to get model releases before publishing pictures of a large group of people in a protest. For artistic purposes, there are a large number of street photographers taking pictures of people on the streets for artistic purposes, again without release. Now, in that case, if there was a desire for the image to be used for commercial purposes, such as stock for Getty (which is where I think you're going based on your previous question), they'd be out of luck.

So, for candid photography, getting a model release does give you some additional flexibility in the use of the image, but it's not actually required if the image isn't going to be used for commercial purposes. As for approaching them, well, that's tough... I'd have a hard time with it, I think, but not everyone does.

For actual working shoots, and I've only done a couple, the answer is sign everything before shooting. This includes any model releases, and possibly the buyer contracts, that stipulates the usage rights and other details, including payment. Never do the work until you have all those figured out, it protects you and it protects the models. Don't worry, people modeling for commercial purposes generally expect the release and they won't be shocked by the contents of it.

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Does EzPrints.com Terms of Use try to grab my copyrights?

Question

I generally don't like legal questions, however in this case my choice is either to accept an agreement or move on to a different print service, and I'll gladly do the latter if necessary. I was reading the EzPrints.com Terms of Use, and I'm a little confused about part of their terms. I hope I'm just being dumb, and its just a matter of understanding. The part I am confused about is Point B:

PHOTOGRAPHS AND PRODUCTS

A.

You can purchase the photographs featured on our Web site from ezprints in the form of photographic prints, or other photographic products such as picture frames or photo- albums (collectively, the "Products"). You acknowledge that all Products are custom made to your order and have no market beyond your purchase thereof. As such, all Products are non-returnable and payment for all Products is required to be made in full in advance. All items purchased through ezprints and shipped to you are subject to a shipment contract under which the risk of loss and title for such items pass to you upon our delivery to our shipping carrier.

B.

You may not reproduce, display, transmit, distribute or otherwise exploit the Products, or any portion thereof, in any manner, including, without limitation, print or electronic reproduction, publication or any display of photographs, without the prior written consent of ezprints. While you can add captions and descriptions to the photographs in your account in accordance with the terms hereof, you agree not to otherwise modify, alter or otherwise manipulate any Product, including without limitation, adding other material to a Product, without ezprints's prior written consent.

C.

...

To me, Point B sounds like EzPrint is telling me I can't modify, reproduce, transmit, distribute, or otherwise exploit my own works if they are printed through them. That sounds rather ludicrous, as there is no way in hell I am giving up my right to rework, print, distribute, and sell my own property simply because I printed it through EZPrints. I am also not going to limit what I do or who I sell to with any print I farm out, however given the wording of this agreement, it sounds like EZPrint is trying to say just that.

What am I misunderstanding here?

Answer

I think that there is not a problem here and it is not a copyright grab. Why? Two reasons:

First, see the first sentence in Part 2a:

You can purchase the photographs featured on our Web site from ezprints in the form of photographic prints, or other photographic products such as picture frames or photo- albums (collectively, the "Products"). [emphasis added]

My reading is that "Products" refers only to value-added stuff created by EzPrints: silly photo frames, mugs, calendars, etc., not your photographs themselves.

Second, reading Part 2b as a copyright grab is highly inconsistent with Part 3 ("Your Copyrights").

Thus, I agree with Alan. IMO, image theft is not a concern here and you should evaluate EzPrints on other criteria.

Other random thoughts (converted from question comments):

My recollection is that EzPrints has a good reputation, though I could of course be wrong. I'm surprised that they would be attempting a copyright grab or even want to be appearing to do so. I would suggest contacting them directly with your concerns.

Given this good reputation, IMO it is fair to give EzPrints an opportunity to weigh in before condemning them. While one explanation for terms that are an apparent copyright grab (and I emphasize that on a second, more careful reading I don't believe it is that, but I can see how it could be interpreted that way) is malice and/or greed, another is simple error. Maybe they have a new lawyer, or whoever was in charge of vetting the terms was having a bad day, or they just had some calendar designs stolen, or something like that.

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What's a concise "I'm not dangerous" phrase for a business card?

Question

Not being a street photographer, I find myself intimidated by onlookers when shooting in public. Given that and an increasingly hostile government attitude toward photographers, I'm thinking a business card that also contains some fairly simple phrase to explain that what I'm doing is legal and unharmful would help me confidence wise and if somebody actually did confront me.

Is there a common phrase or such, that photographers generally use in these situations? Something I could print up on a card with a name, phone number, and email address.

_{I'm aware of the I'm a photographer not a terrorist movement, but its largely UK centric.}

Answer

Before I start pontificating, a disclaimer... My experience is necessarily US-centrc as that's where I live and work. Over the years these methods have worked equally well for me in large cities with jackboot-style authorities (LA, New York, etc.), as well as smaller cities (potentially where the authorities have less oversight and more willingness to shoot first and ask questions later). If you live outside the US, YMMV.

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Question: Is there a common phrase or such, that photographers generally use in these situations? Something I could print up on a card with a name, phone number, and email address.

tl;dr: There's not really some 'common' phrase (despite rumors to the contrary, a blank card with the phrase 'Tubal Cain' will not instantly make any authority figure your b*tch, or for that matter get your court case dismissed!). It's more about confidence and positive interaction with people that allow you to shift yourself from the 'sketchy' column to the 'trusted' one.

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Over the years I've found that 'dealing with the public' and 'dealing with the authorities' are sometimes two different challenges... However, often the 'tactics' are similar and dealing with both groups starts from the same place: confidence.

The Public

In dealing with the public I 'assume the right' and only ask for additional permission and/or explain myself if I'm first approached. I find that the more confident I am (not arrogant, combative, or argumentative... again, just assuming the right) the less often I get approached. Most of the actual 'horror stories' (as opposed to the often breathless and 'over-hyped' 'big-fish stories' that some photographers like to share on the interwebs or when drinking with their photographer buddies) actually occur because a photographer didn't have polite confidence, and/or they didn't handle the interaction in a positive manner.

If I am approached, I have a 'patter' that I use which goes something like this:

"Hi there, my name is Jay Lance from Jay Lance Photography. I'm a professional photographer on assignment."

[As I'm saying this I hand them my business card... There's nothing 'special' on my card aside from the fact that it is professional looking and contains my contact information. Essentially my opening 'move' is to give them a bunch of identifying information without them having to ask or try to pry it out of me... I've told them my full name, my businesses name, and given them my contact information... All information I give willingly with the intention of showing I have nothing to hide, and all information that matches what's on the business card... The sole purpose of doing this is to begin building trust. I don't generally elaborate that the 'assignment' I'm on is usually assigned by... well... me.]

At this point I strike up a light conversation where I'm trying to do most of the question asking and listening...

['What's your name?' 'Lived here long?' 'How about this weather we're having?' It doesn't really matter as long as I do the asking and really take an interest in the answer(s). The point is rapport building and showing that I'm 'harmless' without ever actually having to say that I am or explain myself (attempting to explain can sound like excuse-making and trigger some people's inner-alarm regardless of the intention).]

After a few innocuous questions I generally finish the 'conversation' this way:

"Well [name], it's been really great meeting you, but I gotta get back to it. Feel free to give me a call at the office [referring to the card I gave them] if there's anything else I can do for you..."

[Politely trail off at the end of this... Resist the urge to explain or justify yourself further and clam up without being dismissive. If the only reason you were approached in the first place was so that the person could make sure you weren't 'sketchy,' then the business card + rapport building conversation should have alleviated their concerns. Most of the time the 'social cue' of 'you're interrupting me while I'm working' that you've just put out there will cause whoever has approached you to dismiss themselves, apologize for bothering you, or something similar.]

After all this if they do have a specific question ('what are you doing?') or request ('please don't take pictures of my house') I answer directly, or comply with any reasonable request. Remember that because I actually don't have anything to hide answering direct questions is no big deal! Sure, technically I have the right to take whatever pictures I want, but c'mon, is it that important to escalate to confrontation over the picture(s) you want to take (or took)? Unless it actually is that important (Holy sh*t, a UFO just landed in your front yard and I'm the only one with a camera!) generally the only thing to be gained by not complying with the person's request or acting like an a*shole is to create argument and potentially instigate a chat with the authorities. Which brings me to...

The Authorities

While much of the above still applies to dealing with the authorities (assume the right, business card up front, polite 'light conversation' which tells someone you're not a threat, etc.) it's important to remember that an authority figure generally has training and extensive experience in 'dealing with the public,' and is far less likely to be impressed by you, your camera, and your patter.

This is the point where some well-meaning photographers are getting themselves into trouble.... Remember that 'knowing your rights' and 'explaining your rights to a cop' are two different things and unless your idea of a good time is spending time in the back of a squad car while a cop figures out what to do with you... Seriously, knowing how you plan to approach this conversation is something to think about before you actually have it!

Having said that... There is an 'almost magic bullet' that you should always have in your back pocket (figuratively- you should actually have this clipped to your camera bag or around your neck) for when you are approached by an authority figure... Something that can strike fear into the heart of any good public servant, rent-a-cop, building manager, or administrator: the power of the press. That's right... I'm talking about every photographers secret weapon: the press pass.

There is nothing like a prominently displayed press pass to convey the unspoken message 'I know what my rights are and I can make serious public embarrassment and possibly lawsuit trouble for you and your organization if you step on them!' without ever being confrontational or even having to say that out loud...

Now there was a time when press passes were a tightly regulated commodity, but these days its possible for any 'average Joe' with a bit of money to get their hands on an actual, legitimate press pass from a real press organization and the credentials that come with it for about the price of a meal for two at a nice restaurant.

The press pass adds legitimacy to your patter, and also subtly lets the authority figure know that you probably know more than the average citizen so they should tread carefully. Now don't get me wrong, I'm in no way advocating that you take an adversarial stance with anyone (unless it is your goal to get arrested and test out the bounds of freedom of the press within the court system). What the press pass potentially does is tells the authority figure that you're 'legit' without you having to use a lot of words (which often only serve to make you sound guilty of something... Even if you're not).

For me the desired outcome is that I shift myself in the authority figure's mind from the 'unknown' column to the 'trusted' column as rapidly as possible. The outcome of the conversation may still be that I don't get what I want, but if I'm asked to leave politely as opposed to being forced to leave in handcuffs, or being treated less-than politely in some way, then the badge has done its job. That's the worst case scenario. In practicality I've had many occasions where flashing the press pass flipped me from 'suspicious' to 'trusted' so fast that I've actually had authority figures offer to help run interference, or to escort me to places that 'the general public' is not allowed to be.

Now I do have to say this... don't lie. Having a press pass doesn't mean you work for the New York Times (unless you do), but most of the time that just doesn't matter. Especially in this day and age where there are more media sources than ever and many are farming out their reporting/photography, being 'freelance' isn't a badge of shame. If asked I proudly (remember that whole confidence thing) tell them that I'm a freelance photographer, and if pressed further I am happy to let people know that I can't talk further about the specifics of the assignment that I'm on. The bottom line is this: professional, polite, and confident will often get you a surprisingly long way a lot of the time.

Finally, depending on where you live it may be possible to take things one step farther and actually become an unpaid freelance photographer for a local newspaper or other media outlet (a 'stringer' in the industry parlance). The photo editor at my local 'real' newspaper and at one of the bigger local free papers will acknowledge my affiliation with them simply because I provide a few shots for their publications every year. All I had to do was ask...

So where to get these press passes? If you can't get one via your local media outlet (you often won't be able to unless you're a paid 'staff' photographer, but it never hurts to ask) There are a variety of organizations that offer them, but two of the more 'legit' sources (they have photographer registries that someone could look you up in, in other words) are:

• The National Press Photographers Association (NPPA)
• The US Press Association

For a yearly fee both will register you in their database and give you press passes. In my experience the NPPA is more 'legit' than the US Press Association, although I've never had anyone ever question my credentials or 'have to look me up' to verify them, so in reality it probably doesn't matter that much which you go with... You do get a monthly magazine with the NPPA dues, though. :-)

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Can photographs from a client shoot, but not accepted by them, be used for stock photography?

Question

I have a number of photographs from a recent client shoot that they don't wish to use, could these be sold by myself as stock photography? For that matter, would it be considered to be ethical to do so?

Answer

As for the legal issues, the crux of the matter is the model release. All of the reputable micro-stock websites that I've looked into (Shutter Stock, iStockPhoto, Fotolia, etc.) are going to require a model release if your client is in any way recognizable. Traditional stock agencies will have similar requirements. Even if your existing contract includes a line regarding re-use of images (i.e. in your portfolio, on your website), I doubt that a stock company would accept this kind of document as a "release." If the client does sign a model release, then they have explicitly given you permission to use the photos and you should have no legal problems in re-using the photos.

One potential legal issue, though, could come up with respect to the definition of "consideration received." This is a standard phrased used in the beginning of most model releases, because for the contract to be valid the "model" (in this case your client) must receive something of value from you in return for your rights to re-sell the images. If the client is paying you to take his/her pictures, then you may have a tough time selling to a court that the client received anything of value. Usually this would be something like money (if you pay a model) or photographic services (if you do a trade for shoot with a model).

Ethically, I agree with most of the other answers that you should pass it by the client or at least mention the fact that you'll be re-using images for stock photography. Just because a client isn't going to use the photo doesn't mean it's a bad photo or represents the person in a bad light. As long as you sell "reject" photos that aren't embarrassing, compromising, or the like, then I wouldn't have any ethical problems with it.

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In Canada, who owns the copyright to a photograph that has been taken by a hired photographer?

Question

According to The Canadian Copyright Act (R.S.C., 1985, c. C-42)

Section 10.2.a states:

(2) The person who

(a) was the owner of the initial negative or other plate at the time when that negative or other plate was made

is deemed to be the author of the photograph... [irrelevant information removed for clarity]

Section 13.2 states:

(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.

[Italics added]

A few follow up questions:

1a. Would this mean that without an agreement to the contrary, the customer would be deemed the author & owner? (Owner per 13.2, owner is the author per 10.2.a

1b. Does 13.2 provide the photographer with a legal way to retain ownership of copyright?

Answer

The "agreement to the contrary" needs to be very explicit and carefully worded.

The default assumption in fields deemed to be graphic arts (traditionally, things like engraving and lithography, but under which photography also falls by law) is that the contribution of the graphic artist is of a purely technical nature. In other words, one is normally deemed to be nothing more than a "camera operator", someone who merely records what is -- like an engraver or lithographer who copies an illustration for use in print, it is assumed that you are merely a walking set of technical skills with a tool kit.

The reason it needs to be carefully worded is because it is very difficult, under Canadian law, for a person to relinquish their natural copyright in a work. It is impossible, for instance, to release any work into the public domain voluntarily -- the best you can do is to grant license to everyone for every purpose, gratis, and without requirement for attribution, but that license is revocable at will. Similarly, assignment of all rights in a work (which the customer holds naturally under commission) is difficult to make in an irrevocable manner, so the language around the agreement needs to be clear regarding both the intent as to who will hold copyright and as to who has creative control in the production of the image.

If it's not clear that you, as the photographer, are acting in the capacity of a creative artist, then even an explicit agreement that you will hold copyright in the resulting work may not, in fact, be legally binding. The intent of the law surrounding the alienation of natural copyright is good; the fact that photography is deemed in the Act to be little more than a technical process in the reproductive arts is not so good.

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What are the most important issues to cover in a portrait photo contract?

Question

I am planning on doing some photo sessions for friends and want to do it right. I want to have a contract, but I'm not sure what all I need to include.

What are the most important issues to cover in a photo contract?

Answer

• Pricing details, even if you are doing it for free
• Session details, when/where/etc
• What happens if you can't make the session
• What happens if you lose the images
• Model Release if you want to use the photos to promote yourself

Those are the biggies.

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