My Dec. 15 posting here – “Fearmongers are Giving Photographers a Bad Name” — invited some interesting comments. Although many readers sympathize with the perils of street photography, there are a number who consider it rude and offensive to photograph a subject when they are unaware and without permission.

I get the impression that some readers think photographers are a crass lot, incapable of any feelings toward their subjects. A few suggest that they would never stoop so low as to photograph strangers. I even get the impression that they would like laws passed to enforce this notion.

Pictures Without People

What kind of world would it be if there were laws preventing people from photographing strangers without their permission? We wouldn’t have the magnificent work of Henri Cartier Bresson, Robert Doisneau, Robert Frank, and countless others. Their work would be illegal.

The photographic record of the 20th century would be very different. It would consist of pictures of empty streets, devoid of people. The only pictures of people would be of them standing still, posing for a camera. Cameras would be forbidden at sporting events, public places, store openings, movie premiers, crime scenes, dog shows, wars — anywhere crowds are present.

Snapshots would be allowed, of course. But you would have to take special care when taking snapshots of children and family friends to make sure there are no strangers in the background. When taking pictures at your kid’s birthday party, you would need a signed release from all the parents. Weddings would be difficult, of course. Some guests would sign releases, but others would invoke their legal right not to be photographed.

News reporting would be entirely different – no photographs of people in the news, spectators, crowds or passersby. All newspapers could publish in the way of photographs would be formal portraits of newsmakers. It would be the same for television news.

Where Does It End?

It wouldn’t stop with people. Before long those who wish to protect their privacy would attempt to pass laws prohibiting photography of homes, offices and monuments. That’s the kind of society that can evolve when we allow ourselves to by driven by fear, political correctness, and ignorance.

Photographs harm no one. We all have the right to refuse to have our pictures taken — all we have to do is politely say no. But to presume we are protecting the general public by restricting these activities in others is fundamentally wrong.

There are two ways to go through life. One way is to be timid, constantly worry about offending others, never taking chances, and always siding with the majority. People like that seldom are very creative. The other way is to be out there, curious, hungry for discovery, and following your own path. That is the road I choose to take.

These three photographs have something in common: They are all about fear.

They are a reminder that every day, photographers are mistaken for perverts, terrorists, thieves, and other weirdos just because of the cameras around their necks. People seem to assume that we are “up to something.”

People who really are up to something probably don’t announce it by walking around with three-pound DSLRs hanging from their necks. I don’t know of an instance in which a person was injured by having their picture taken.

In fact, it seems to me that the only people who might be hurt by having their pictures taken would be those who might be, well, up to something.

Yelling at Kids — and Photographers

This photograph was shot in London. We were walking through a park for pensioners and sat down on a bench to rest. We were facing a tennis court where a very militaristic guy was trying to teach kids how to play tennis.

As he shouted instructions to them, I took a few frames and realized there was little of interest. I stopped, but the instructor must have noticed me. He started shouting at me to stop immediately or he’d have me arrested.

“It’s against the law, you know. It’s a very serious offense here,” he barked before going back to yelling at the kids.

I seriously doubt that there is a law in England about taking pictures of children in public parks.

Keeping His Belly Private

This photo was taken in Times Square in New York.  I noticed the cop’s belly protruding from the side of the building and took a shot before he noticed me.

“No pictures!” he shouted.

“But this is Times Square,” I replied.

“Keep moving, or I will run you in!”

So I shrugged and walked away.

I seriously doubt that there is a law in New York about taking pictures of police officers.

Not-So-Public Park?

This picture was taken at a skateboard park in West Palm Beach, Fla. It was a public park and as I was walking by, this kid shouted at me to take his picture so I did.

I shot a few and decided to go inside and take a few more. But as I walked through the gate a young lady asked in a very officious tone what I was doing. I said I just wanted to take a few pictures.

“Are you a parent?” she asked. I said I was not; I was just a photographer doing what photographers do. She said it was forbidden for people to take pictures of the kids unless they were parents. She told me to leave.

A public park. In a city of which I am a resident and to which I pay taxes to support parks such as this.

I seriously doubt that there is a law in West Palm Beach about taking pictures in public parks.

Privacy and Photography: Where Does It End?

Over the past few years I have noticed that cameras are now forbidden in shopping malls, stores and museums. Who are we trying to protect? And what are we trying to protect them from?

I used to love taking photographs of people in museums, but that is becoming more difficult. I can understand why some museums forbid using flash, but just taking pictures is also forbidden. Some museums even insist you check your camera at the door.

There is a part of me that wants to resist, to confront, to ignore these people, but it’s simply not my style. All I can do is write about it.

Have you been confronted with this attitude? What did you do?

Fourth in a series.

In the first part of this series, we introduced you to an Ottawa photographer who, when asked about getting paid, joked that “baseball bats work wonders.” In this last installment, we’ll discuss how to swing the legal lumber: namely courts and collection agencies.

Freelancers in all sorts of businesses seem to be in agreement that going to court may be throwing good money after bad. But there seems to be plenty of advice out there about what you can do first.

The Freelancers Union, the industry group that counts more than 150,000 members, says the first step is sending a formal demand letter requesting payment. “We are writing to collect the past due amount of …” begins the sample letter on the group’s web site.

A Tough Situation

Professional copywriter Dean Rieck has some realistic advice on how to handle what’s admittedly a tough situation.

Writing on his blog ProCopyTips, he says, “Ask for immediate payment. Say you want to avoid any hassles like legal action. This is difficult to do. You won’t like it and the client won’t like it. But it has to be done. Still, be professional and don’t say anything you’ll regret. It’s at this point, you may lose your client forever. But then, a client who doesn’t pay is not a client you want. And a client who owes you money will never hire you again.”

After that, Rieck advises, “Pick up the phone one more time. Have a last conversation with the client and try to work things out. Offer a payment plan. Ask your client how to resolve the issue. And if this doesn’t work, your next call should be to a collection agency or lawyer.”

Choosing a Collection Agency

“If you opt for a collection agency,” he says, “try to find one near your client. This seems to have more impact. If you opt for a lawyer, try to find one who specializes in collections and who can follow through with a suit if it comes to that.”

The Freelancers Union’s web site has the name of a firm that gives members a 10-percent discount. It also advises members to seek out other members who are lawyers.

Here, Rieck urges caution. “Be realistic,” he says. “In the end, if clients don’t want to pay, they won’t pay. Collection agencies can work, but not always. And if you file suit, remember that clients can always file a counter suit and claim you didn’t do the work you promised. It doesn’t matter whether it’s true or not, you can sue anyone for anything. So consider the pros and cons carefully before you begin any legal action.”

Outing Non-Payers

But plenty of freelancers seem to endorse “outing” the non-payer. Freelancers Union has its Client Scorecard. Others have similar offerings. But Facebook, Twitter and LinkedIn can work too.

In the end, the best defenses against nonpayment aren’t letters and lawyers, but well-written invoices, frequent communications, and a polite but businesslike approach. Being selective about whom you work with helps too, according to one photographer.

He says his secret to getting paid is choosing good clients and being flexible about the definition of “on time.”

Third in a series.

When it comes to getting paid for her photography, New Yorker Giovanna Grueiro has a system. You should too.

In this installment of our series, we’ll explore how having a plan to get paid for each job will keep your businesses — and your client relationships — healthier.

For Grueiro, it seems to be about staying on schedule.

“Typically there is a deadline for each payment,” she says. “The deadline is usually a month after the project has been completed and ready to deliver. There are reminder e-mails with the invoice and statement attached.”

Sending Reminders

To make payment easier, she says, she includes information on paying online through services like PayPal.

Her reminder e-mails go out three days after the deadline, with a warning about her late fees if payment is five days late. At five days after the deadline, another e-mail goes out, with a new invoice that includes the late fees.

“So on top of not receiving the photos right away there are penalty costs,” says Grueiro, who adds, “I have never gone so far as to take a client to small-claims court.”

Blogger Erin Russell, writing for Biz 3.0, also reminds us to amend contracts to reflect changes.

“Changes will happen in every job you do. People change, project goals change, contracts get bigger, contracts get smaller. You should address these changes in the contract. Ideally each change should cost the company or client money.”

Her sound advice takes us through the entire process of obtaining payment:

“Stay on top of your bookkeeping, and if certain clients aren’t paying their bills, politely let them know service will be discontinued. While this only works for ongoing projects, it will prevent a customer from racking up a debt they’ll never be able to pay. In other words, it prevents you from pouring time and effort into a project you won’t be compensated for.

Rising Concern

“Have a letter written, saved, and ready to send for this circumstance. Using the same letter every time will take away some of the situation’s stress and allow you to respond quickly. After a week of nonpayment, a short reminder letter is appropriate. Within this timeframe, the bill might have slipped a client’s mind or there may be a holdup with their financial department.

“Five days after sending a polite reminder, pick up the phone and call the client if they still haven’t paid. You should have obtained contact information for the person who would be paying you at the outset – this is when you use it. Ask your contact about the status of your invoice, and be sure to get a specific date when they plan to send payment.

“If no one answers, leave a message and follow up with email. Your communication should show rising levels of concern as time goes by, but maintain a professional, objective tone.”

Russell concludes, “If you regard yourself as a professional then you and the companies you work for should treat you that way.”

Second in a series.

Having a hard time getting paid for your freelance work? You’ve got company.

Some 44 percent of “independent workers” had difficulty getting paid for their work last year, according to the Freelancers Union, the industry group that counts more than 150,000 members nationwide. It says three out of four freelancers are paid late or not at all at least once in their careers.

“Collecting payment is a big issue that’s been compounded by the economy,” Gary Swart recently told The Wall Street Journal. Swart is chief executive of oDesk, a freelance-management web site that acts as a liaison between freelancers and clients.

Applying Pressure

He told the paper about an especially worrisome tactic: companies trying to negotiate lower prices from freelancers — after the work has been delivered!

As we discussed in the first installment of this series, a good invoice may be the best protection against nonpayment. Getting partial payment up front helps too. Freelancers Union also suggests being prompt sending out invoices and late notices, following up oral agreements with e-mail confirmations, and keeping records of all communications.

But how do you prod a client who’s slow to pay?

The Wall Street Journal story advises: “Get over the embarrassment. Don’t be uncomfortable with asking about money — everyone works with the expectation of getting paid.”

But there are strategies to encourage payment. Find out at what interval the client would like to be invoiced and follow that schedule. Smaller balances can be less daunting, another argument for more frequent invoicing. Offering proof of your time spent in the form of a timesheet may also help convince a doubter you deserve your money.

The Imaginary Accountant

If you’re feeling like a pest, blame your imaginary accountant. If the company is local, offer to drop by to pick up your check. Face-to-face meetings are harder to ignore than an e-mail or phone message. If your primary contact isn’t helpful, find out who is actually responsible for getting you paid.

A quick call to the company should reveal that person’s name and contact information. Remember, people in accounting have little or no knowledge of the work you did or any creative differences you may have had with the client. Accounting people live to pay bills, and your unpaid bill is for them a problem that needs solving. A polite letter to the business manager can include the details of the job and copies of the invoices sent.

Keeping Things Civil

In dealing with the business manager, you can get creative by offering to forgive late charges or accepting a payment plan. Just be sure and keep things civil – this is the person who can pay you, or not – and follow up any phone conversations with a written note or e-mail.

If all else fails, the advice goes, withhold delivery of further work – politely, of course.

The trick, clearly, is handling the situation in such a way that you end up with your money and a client who will call you again. Having accomplished this, it may be time to ask yourself: When that client calls you again, do you want to answer?

Next: Using a reminder system

(Editor’s note: In today’s uncertain economy, freelance photographers are waiting longer than ever to receive payment from their clients. Following is the first in a series of articles by Brandon Cotter, founder of ZenCash, offering tips to accelerate your cash flow.)

When it comes to getting paid for freelance work, Ottawa-based photographer Younes Bounhar quips, “baseball bats work wonders.” But for the less athletic among us, the most effective instrument is still the invoice.

Invoices are even more important these days with studies showing that in this economy, customers are taking longer than ever to pay small businesses — an average of 48 days, according to a survey by the National Federation of Independent Businesses.

Requiring Prepayment

The simplest of invoice terms, of course, is prepayment. Dallas-based Rachael Ellis, who specializes in wedding and custom art photography, insists on it. And don’t give her a check. It’s cash or a money order.

Withholding work until payment is delivered may be the next-most-popular approach. But most invoices aren’t so simple, and freelancers have to get more creative. Many insist on at least some part of the payment up front. It’s collecting the balance, of course, that gets tricky.

Plenty of freelancers use late fees. British photographer Bruno Conrad learned them from his father, a freelancer for 30 years.

“He said to me that you should state, on your invoice, that the payment must be made within 30, 60 or 90 days, and then add a 10 percent charge for each week that the payment went over the stipulated date.”

Conrad says, “It might not make any difference to being paid on time — especially with bigger companies — but at least you’ll be making money off them when they do drag their feet with payment.”

Offering Discounts

Californian Lara White says her company added a $100 late-fee policy just this year because so many payments were late. Others turn the late-fee idea around, and offer discounts for paying on time. In Florida, photographer Ken Hayden promotes discounts for “quick payment.”

Regardless of the terms, photographers seem to agree that another key to getting their money is offering payment methods customers will use. PayPal is a favorite, along with others like Square, the credit-card processing service.

“Nothing like being paid instantly!” one Square fan raves.

There is plenty of help online with invoicing with companies like FreshBooks, Harvest, Blinksale, ShootQ and others. The FreshBooks website boasts, “You’ll actually enjoy invoicing!”

“I get paid sometimes when I completely forgot a client owed me money,” says Texan Jonathan L. Golden. “It’s great.”

Staying Vigilant

A last area of consensus when it comes to getting paid is one very familiar to freelancers: vigilance.

Says Canadian photographer Paul Ritter: “Don’t procrastinate! I start post-processing as soon as I get home from a shoot.”

But it all starts with the invoice, a lesson Stijn Swinnen learned the hard way.

Four years ago, he says, he joined a cooperative photo exhibit in Belgium. One of his works was a large panorama of the city’s main square. The photo attracted the interest of a potential buyer, who wanted to display it in his downtown building. The sale never went though, and the work was damaged – accidentally, but beyond repair.

“They didn’t want to buy it or refund for the damages, so it was worthless for me,” he says.

“My mistake? We never set anything on paper.

“No agreement, endless discussion, no money for me.”

Next: Prodding the slow-paying client

Let’s face it, you are waging a losing battle. In fact, it’s not even a battle because one side has won already.

Every time you sign up for a social network, be it Facebook, Twitter or Google+, you are faced with TOS (Terms of Service) that are naked rights grabs — making it a risky proposition for you to share your images.

And yet, everyone tells you that the only path to success in 2011 is to have your images on these sites.

What to do, you ask?

There’s No Free Lunch

Here are three basic facts photographers should know about social networks:

1. There is still no such thing as a free lunch. If someone offers you something for free, it is only because they get some kind of benefit out of it. You can be sure they will find a way to monetize your images.
2. If you use a service for free, you become the product. What do you think Facebook, Twitter or Google+ sell, anyway? It’s you. Your participation on their sites is what they sell to advertisers. That includes your pictures.
3. In order to show the images you post on these sites to your friends and family, the social networks need the legal right to do so. Since there is no way for them to actually know who your friends, family or others are, you must submit to a blanket agreement stating that they can share them with everyone.

If you think you can sign up on a social network that will genuinely protect your intellectual property, you are sticking your big left toe in your eye. It is just never going to happen.

So, what to do? Deal with it.

Sharing Is Caring

It’s time to accept the fact that if you post your images on a social network, there is a 110 percent chance you will lose complete control of that image.

What are the repercussions of this, anyway?

If you post pictures of your 3-year-old nephew at your cousin’s barbeque party, you don’t have much to worry about. Besides a few polite “likes” from your relatives, not much will happen to that image, and it will soon be forgotten along with the other 10 million images uploaded to Facebook in a month.

However, if you post the only image of a plane crash landing on the Hudson River, well, get ready for it to be grabbed and spread around.

Here is the irony: Photographers or photo agencies post their images on social networks in order for them to be seen, appreciated and — dare we say it — shared.

The presumed intent of posting such images is for them to be viewed by a wealthy photo editor, who will either purchase them or hire you, right?

And since you do not yet know this hypothetical photo editor, the only way to reach this person is via other people who repost your images, right?

Do you expect all these people to ask you for permission and pay you a license fee every time they share your pictures? If so, you’re in dreamland.

Fortunately, ownership of an image doesn’t lie solely in managing its usage. It is also embedded in it. If you have a style, a talent, a point of view and an identity, your image will always speak your name, credit or no credit. People who see your images will want to track you down in order to find the talent behind those photographs.

If they don’t, well, that’s because you’ve failed as a photographer.

You’ve Got Three Options

Social networks’ TOS are not going to change because they are at the core of how they make money. Not by licensing your images (everyone knows there is no money there), but by using them to grow the network and sell more eyeballs to advertisers.

And for that, they need the right to do what they damn well like with your images. Forever.

Bottom line, you’ve got three choices as a photographer:

1. Don’t upload your images
2. Watermark your images
3. Upload only images that you are ready to give away

Whatever option you choose, can we all please stop bitching and moaning about every new TOS like there is anything we can do about them?

Stop wasting your energy and time. Get back in the saddle and figure out how you can benefit from social networks without losing your shirt (and your sanity) in the process.

People who want you to forfeit your intellectual property rights like to point out the enormous creativity of those who would use your work without compensating you.

They’re not stealing your work. They’re “remixing” it. “Transforming” it. “Mashing” it up.

Right.

Look, I can appreciate the talent that goes into a remix or mashup. The Slap-Chop remix was awesome, for example. But it was also an infringement.

You place your bets, you take your chances. DJ Steve Porter took a risk and it paid off for him.

But that doesn’t mean Porter’s remixes should have the legal status of a new creation or original work. That’s ridiculous.

View from the Ivory Tower

Unfortunately, that’s the point of view of some influential people, like Harvard law professor Lawrence Lessig.

From high atop his ivory tower, Lessig declares that the mashup artist should be able to remix scenes from a Disney movie, for example, and claim ownership of the finished product.

But how can you separate this derivative work from the original work and the tens of billions of dollars of marketing that has made Disney a household name for most of a century? You can’t.

If he’s allowed to succeed, Lessig’s mashup of intellectual property law will create a legal mess for all of us.

The Behemoths Weigh In

Fortunately, Disney, Sony Music, the news wire services and others aren’t buying Lessig’s argument — and as photographers, we’re lucky to have these corporate behemoths on our side.

Don’t get me wrong. I greatly dislike what the record labels have done to independent musicians. And in our profession, the contracts the wire services dictate to freelance photographers today are shameless. In particular, they have been reprehensible in their demands to own the intellectual property that we as photographers create.

But there’s an old saying that applies in this case: The enemy of my enemy is my friend.

The large corporations, with their deep pockets and strong desire to control intellectual property rights, will be the defenders of IP for all creators of original work in the legal battles ahead. And that means they’re on the same side as us — the independent photographers.

Lessons of Napster

We need only look a few years back, when the hooligans who ran Napster were, quite literally, running amok with the creative talents of musicians everywhere.

More than one professional photographer I know had streams of Napster-sourced music running in their studios and seemed to see nothing wrong with it — until I pointed out the hypocrisy.

Call me a killjoy, but stealing music is stealing from artists. Period.

Fortunately, iTunes created a system that encouraged music downloads while compensating artists, and Napster was lobotomized into a lifeless parody of itself.

Fast forward to 2011, when we have people being encouraged to steal photographs and video, and visual artists being encouraged to throw away their IP or to allow unauthorized and objectionable uses of their creations.

We’re told that anyone should be able to go to our website, take photographs, use them, “remix” them, and do so without our knowledge or permission.

I Stand Against IP Thieves

Lessig would have you believe that enforcing copyright law has become like the War on Drugs — unwinnable, and overshadowed by the collateral damage it has caused. In this case, the collateral damage is in the form of underground DJs and other criminalized remixers.

I have little pity for these mashup artists, at a time when the artists of original work have such a difficult time protecting it, receiving fair compensation and feeding their families.

And so I will gladly stand alongside the wire services, music and movie industries as they leverage their might to defeat those who would steal our work.

In the 16th century, Michelangelo worked on commission. Without his many patrons, there would be no Sistine Chapel ceiling, no Pietà, no David.

Maybe it is time for photographers to return to the Renaissance model for financing their efforts. Because for many creative professionals, the current way of doing business seems doomed.

No Respect for Ownership

In his biography, The Age of Turbulence, Alan Greenspan, former Federal Reserve Board chairman, wrote:

My experience leads me to consider state-enforced property rights as the key growth-enhancing institution. If those rights were not enforced, open trade and the huge benefits of competition and comparative advantage would be seriously and dramatically impeded. People generally do not exert the effort to accumulate the capital necessary for economic growth unless they can own it.

He went on to add:

The presumption of individual property ownership and the legality of its transfer must be deeply embedded in the culture of a society for free market economies to function effectively. In the West, the moral validity of property rights is accepted, or at least acquiesced in, by virtually the whole of the population.

I question whether the concept of individual property ownership is “deeply embedded in the culture” anymore — at least as regards creative endeavors.

Indeed, a large, vocal segment of the population seems to believe that certain property should be free to all, and that the creators have no rights once the property is shown to anyone. Using the creative works of others without permission or compensation is becoming the morally accepted standard.

Curse of the Free Internet Society

Prevailing “wisdom” — and certainly prevailing behavior — says that in the Internet age, everything should be free. This not only includes anything that an individual publishes online himself, but if it is possible for someone else to takes an individual’s creative work and post it on the Internet, this should be permissible also — even without the creator’s permission, knowledge or any compensation.

As photographers, our business is both blessed and cursed by the fact the finished product we create can be easily delivered on the Internet.

If you purchase a pair of jeans online, you can view them and pay for them, but you don’t have anything you can use until the product is physically delivered. With photography, if you show the customer what you are offering for sale, the customer immediately has something he can use — whether he chooses to pay for it or not.

Sure, if the version of the image you show the customer is a very small file, and the customer needs access to something larger, then the customer may be forced to do business with you. But for customers whose planned use is on the Internet, it won’t be long before most of those paid uses disappear.

We should also bear in mind that there are fewer and fewer print uses available, while the number of online uses continues to grow.

And of course, once your photograph appears in high resolution, either online or in print, there are plenty of sites that reuse them without permission. Many site operators display images they have scanned from print publications.

Fine art photographers whose customers want a print they can hang on their wall may be able to get by with displaying their work on the Internet, because their customers will need access to a large file to make a good print. But they may not be able to guarantee that they are offering a limited edition, as the Internet version may be appropriated by lots of other people.

What Microstock Proves

Some will point to microstock as proving that, despite general moral attitudes, many people are still willing to pay for the photos they use.

That may be true, but I believe an important factor driving such purchases is the customer’s willingness to pay small amounts for convenience and service. If someone saves them time by making it easier and quicker for them to find the right image, they will pay for that service.

But I doubt most customers stop to think that a portion of the fee they are paying should be going to the creator for his or her abilities and the effort expended in the creation. I doubt they care.

Frankly, I think many people, and particularly those who grew up with the Internet, believe that all creative work should be immediately placed in the public domain for the benefit of all.

What’s a Photographer to Do?

Given the changes in society’s mores, what kind of jobs will there be for professional photographers in the future?

I really think that those interested in taking pictures as a career may need to focus entirely on commissioned work.

Some companies will need someone who is always on call to produce certain images the organization needs. Such staff jobs, though limited in number, will continue to be available.

For the self-employed photographer, there will be weddings, family or business portraits, event coverage, contractors who need progress photographs of new buildings, fashion, and so forth. There will also be some news coverage — although in the future a lot of that is likely to be supplied by amateurs.

The idea of taking pictures on speculation and showing them to potential customers, or trying to resell second rights to images created on a commissioned job, is becoming a thing of the past. Producing pictures in expectation that the costs of production will be covered by many users, each paying a small share of the cost, is becoming an unworkable model.

So, photographers, I suggest you focus on work where your price for the project is agreed upon up front, and an advance paid.

When your work is delivered, the customer will receive all rights to do whatever he wants with it — except control its use. No one apparently has that right anymore.

Photographers marketing their images online should be alert to e-mail scams that seem to be growing in frequency. This is particularly true for those selling fine art prints.

The scam usually works like this:

The photographer receives an e-mail from someone who has seen their images online and wants to purchase some of their art. The buyer is usually located in a foreign country, frequently Australia or South Africa, but it can be anywhere. The intended use of where and how the art will be hung is often described in detail.

The buyer offers to pay by credit card, traveler’s check or cashier’s check and asks that the artist ship the work upon receiving payment. The buyer also agrees to pay for shipping and typically recommends a freight forwarder they normally use.

Where It Gets Interesting

It all sounds legit so far, doesn’t it? Here’s where things get interesting:

When the photographer receives payment, it is for much more than the agreed amount — often hundreds or even thousands of dollars. The photographer deposits the money in his bank account.

The buyer then discovers the mistake and asks the photographer to refund the amount of overpayment. Since the money is in the bank, the photographer agrees to write a check to the buyer refunding the overpayment.

Some weeks later, the bank informs the photographer that the buyer’s credit card was stolen or that the traveler’s check or cashier’s check was counterfeit. The bank cancels the transaction, and the photographer is out the amount of the refund he sent the buyer.

In addition, if he has shipped any photographs, he has no money to show for that transaction.

Usually, the overpayment includes the amount the photographer must pay the freight forwarder when the work is picked up. It is unclear whether the work is dumped right after the freight forwarder gets his hands on it, or whether it is actually shipped somewhere or sold to a third party.

A Matter of Time

Because it’s only a matter of time before the bank sniffs out the criminal activity, the buyer usually applies pressure to get the refund quickly. One scammer told a photographer he had a family health emergency and needed the money “immediately.”

One strategy that seems to work when you suspect a scam is to say you only accept payment through PayPal or Payoneer. These organizations have antifraud specialists and antifraud risk models for fraud-detection. They also have address verification for credit cards and require card security codes as ways of minimizing fraud. When scammers understand that’s the only way you will accept payment, that’s usually the last you hear from them.

According to photographer John Math:

Another way for artists to protect themselves in a transaction like this is to insist that the transaction be handled by an escrow agent. The final transaction, shipping etc. is not completed until all of the funds have been verified and cleared. Any legitimate buyer or collector of art will not have a problem dealing in either manner. Anyone who objects to this way of doing business is someone who you do not want to do business with!

Seven Warning Signs

Math suggests a number of other things to look for to determine if you are dealing with a scammer:

• The scammer usually lives outside the United States.
• The scammer will have a story as to why he wants to buy the art.
• The e-mail solicitation is usually poorly written, with words misspelled or poor grammar.
• The scammer will have “their shipper” contact the artist.
• The scammer says that a friend or relative will pick up the art directly from the artist. This is designed to speed the transaction.
• The scammer needs the art “quickly” for some special occasion.
• The scammer cannot remember all of the details of the piece of art. One scammer said he wanted to buy the photographer’s “paintings,” not realizing that he was dealing with photography. Scammers contact hundreds of artists with the same scam, and they tend to get the art mixed up.

Particularly when your photography business is struggling in a difficult economy, it’s easy to let your guard down when someone offers to buy your work. Stay vigilant.


]]> http://rising.blackstar.com/photographers-be-sure-to-watch-out-for-online-scams.html/feed 5 http://rising.blackstar.com/eye-on-image-making-image-makers-and-the-law-part-3.html http://rising.blackstar.com/eye-on-image-making-image-makers-and-the-law-part-3.html#comments Mon, 04 Oct 2010 03:06:09 +0000 David Weintraub http://rising.blackstar.com/?p=13859

One of the legal issues that can snare an unwary photographer is defamation, which means harming the reputation of another person. Defamation when printed or broadcast is called libel, whereas spoken defamation is slander.

How can a photograph or a video harm someone’s reputation? Sometimes, the visual image implies something about the people being pictured that is untrue and defamatory.

Setting Yourself Up for Libel

Jay Bender is the Reid H. Montgomery Freedom of Information Chair at the University of South Carolina’s School of Journalism and Mass Communications, and a lecturer at the university’s law school. He is also an attorney for the South Carolina Press Association and the South Carolina Broadcasters Association.

Bender describes the following scenario. A newspaper photographer was assigned to illustrate a story about drinking in public parks. In his mind, the photographer imagined a photo-illustration in which any people pictured would be unrecognizable.

So, he gathered a bunch of empty beer cans, found a group of young people, posed them on a picnic table, and placed the beer cans in the foreground.

Newspaper Goofs

Unfortunately, the newspaper he worked for ran the photograph unaltered, and the faces of the youths showed up clearly.

What’s worse, says Bender, is that the young people were part of a Sunday school class having a picnic in the park.

Were the photographer and his newspaper at fault? Certainly, Bender says. “Because they weren’t drinking in the park. Is that a problem? Yes. Where you juxtapose different images and different scenes and sounds to create an impression that’s not the reality, you’re exposed to a libel claim.”

Can Video Defame?

How would this play out if the medium were video instead of still images? Are there defamation issues that can arise when you edit your video to combine scenes shot at different times? Yes again, says Bender.

If you combine footage shot at different times and in different places to give the impression that the action was happening at the same time in a single location, the resulting falsehood could be defamatory if it injures someone’s reputation.

Words, Music, and Audio

Sometimes, it may not be the visual images themselves that are defamatory, but rather the accompanying words, music or other audio.

A San Francisco photographer was sued when the magazine he was shooting for published his pictures of young people hanging out on the street after dark with captions that implied they were gang members.

Even though he claimed not to have mentioned gangs in his notes, both the photographer and the magazine were sued by the families of the young people. The pictures alone were not defamatory—but they became so when married to inaccurate captions.

A Hypothetical Situation

Could music or a voice-over narration turn a video documentary into fodder for a libel suit? Consider the following hypothetical situation.

You are filming a slice-of-life feature story on the nightlife in your home town. You get colorful footage of people hanging out in front of bars and restaurants, strolling arm in arm, enjoying themselves. You go inside a few clubs and shoot bands playing and couples dancing.

To jazz up your video story, you decide to add some music. To go with a shot of several young women hanging out in front of a bar, you lay in an audio track of Roy Orbison singing “Pretty Woman.” For your next shot, a group of guys walking by the bar, the music changes to the theme from Jaws.

Now, what about narration? As we zero in on the young women, we hear a somber voice say “Prostitution is on the rise in small-town America, and police are helpless to stop it.” Suddenly your slice-of-life feature story becomes a crime-busting expose’ of hookers and their johns.

The Libel Zone

OK, admittedly this is an extreme example. But clearly, text, narration, music, and other audio can completely change the meaning of visual images—and push an otherwise truthful story into the libel zone.

We all know how easy it is to edit video and mix in various audio tracks. Just use caution and make sure that you are presenting a truthful picture—and not one that could be interpreted as defamatory.

Now, in the example I just gave, what if you had gotten model releases from everyone in the video—would you have been protected from a libel suit? Sorry, a model release protects you against a claim for invasion of privacy, not defamation.

Defenses to a Defamation Claim

Truth is an absolute defense to a defamation claim—so if the women had, in fact, been hookers and the men their johns, you would be in the clear.

Also, under the “substantial-truth doctrine”—which applies in many jurisdictions—you will be judged on the essence of your total presentation, not on minor, inconsequential errors of fact.

You cannot be successfully prosecuted for defamation if your images, words, music, and other audio truthfully represents what your subject said or did, Bender said. “But if you take answers out of sequence and create the impression that I have said something I haven’t said—and if that were injurious to my reputation—then I would have a libel claim.”

And the more the distortion, the greater potential for libel, Bender said.

To protect yourself, be a careful researcher. Get correct spellings of people’s names, use their middle initial, and take nothing for granted, not even from “official” sources. Don’t jump to conclusions or make implications. Let the facts speak for themselves.

Finally, most states allow you to publish a retraction if you are threatened with a libel suit—and this may end the legal action against you.

How Can They Say That?

If publishing untruths that damage someone’s reputation is legally risky, how does Al Franken get away with calling Rush Limbaugh “A BIG FAT IDIOT” on the cover of his book? How do the supermarket tabloids evade libel suits from Tom, Jennifer, Brad, and Angelina? How come the “birthers” get to claim that President Obama isn’t a U.S. citizen?

It all comes down to the legal status of the person bringing the libel suit. If they are deemed to be a public official or a “public person,” they have almost no chance of winning. Why?

Actual Malice

In 1964, the U.S. Supreme Court ruled in New York Times Co. v. Sullivan that a public official cannot win a libel suit relating to their official conduct unless they prove “actual malice.”

In other words, the alleged defamatory material has to be published “with knowledge of its falsity or with reckless disregard of whether it was true or false.”

The Court later extended the same nearly insurmountable standard of proof to people who wind up in the public spotlight—through their position in society, their own actions, or by being caught up in newsworthy events.

For private individuals, states are free to devise their own standard of proof for defamation—but at minimum there has to be negligence on the part of the plaintiff. And for punitive damages, there has to be actual malice.

Friction with the First Amendment

There is obvious friction between defamation and the First Amendment, which says that Congress shall make no law abridging freedom of speech or of the press.

In fact, former U.S. Supreme Court justice Hugo Black viewed defamation suits against the press as an inherent violation of the First Amendment.

On the other hand, former justice Potter Stewart called defamation suits necessary to uphold “the essential dignity and worth of every human being.”

What Do You Think?

Should libel laws be tightened or loosened? Are there too many restrictions on how we express ourselves, or have we become too permissive as a society? Have you ever been involved in a situation where someone’s reputation was at stake? How would you feel if that someone were you?

As always, I’d love to hear from you!

The material in this column comes from a chapter I wrote on media law for Videojournalism: Multimedia Storytelling, a new textbook by Ken Kobré, professor of photojournalism at San Francisco State University and author of Photojournalism, the Professionals’ Approach, now in its sixth edition. Focal Press will publish Kobré’s new book in 2011.


]]> http://rising.blackstar.com/eye-on-image-making-image-makers-and-the-law-part-3.html/feed 2 http://rising.blackstar.com/is-there-a-statute-of-limitations-on-copyright-infringement-claims.html http://rising.blackstar.com/is-there-a-statute-of-limitations-on-copyright-infringement-claims.html#comments Mon, 27 Sep 2010 03:02:58 +0000 Carolyn E. Wright http://rising.blackstar.com/?p=13724

A Black Star Rising reader sent us the following question:

I recently found a photo of mine on the blog of a small business. The blog post that included my photo was published in 2007. Is there any “statute of limitations” on copyright violators, or can I pursue this issue whenever I come across one of my photos?

When someone infringes your copyright, the time that you have to make your claim is limited. This is indeed based, as you suggest, on the legal principle called “statute of limitations.”

Statutes of limitation, in general, are laws that prescribe the time limits during which you can file lawsuits. The deadlines vary with the type of claim and — at times — they depend on the state where you live.

The purpose of such statutes is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain time.

The “Last Act” of Infringement

Because copyrights are governed by federal law, there is only one statute of limitations for copyright-related claims. Copyright infringement claims have a three-year statute of limitations from the date of the “last act” of the infringement.

What constitutes the last act can vary. If your image is published in a newspaper without your permission, for example, you have at least three years from the date that the newspaper was distributed to file your claim in court.

However, if the infringement continues, such as when the photograph remains on the newspaper’s website, the “last act” has not occurred until your photo is removed from the site.

In your case, since the photo is still displayed on the small business’ blog, you should be able to take legal action against the infringement, assuming the usage is not protected by “fair use.”

Handling Past Infringements

Often, photographers don’t find out about an infringement until after it has occurred — well after a photo has been pulled down from a billboard, distributed in a magazine, or removed from a website.

In these cases, it’s important to understand exactly when the three years starts.

Some courts follow the “injury rule” for starting the clock for statute of limitations. This means that the three years begins at the time of the last act of infringement, regardless of whether you know about it. Therefore, if you don’t learn about the infringement until three years and a day after it occurred, then you can’t make a claim against the infringer.

Most courts, however, follow the “discovery rule” for the statute of limitations for copyright infringement. In other words, the time starts when you actually discover the infringement — or when you should have discovered it, if you had been diligent.

The latter situation also is known as “constructive notice.” An example of this “constructive notice” is when your photo is published in a nationally distributed magazine, but you didn’t see a copy of it.

Currently, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Circuits have held that the “discovery rule” applies to claims under the U.S. Copyright Act. That leaves only the Tenth and Eleventh Circuit courts with the more restrictive “injury rule.”

States in the Tenth and Eleventh Circuits include Alabama, Colorado, Florida, Georgia, New Mexico, Oklahoma, Kansas, Utah and Wyoming.

Collecting Damages

After you file your lawsuit within the statute of limitations, some courts limit your damages for the infringement to the last three years. But others, such as those in the Ninth Circuit, allow a copyright owner to recover all damages accrued, even if they occurred outside of the three-year window for the statute of limitations.

The bottom line is, if someone uses your photo without your permission, don’t sit on your copyright claim. Check with an attorney to discuss your options as soon as you realize you’ve been infringed.


]]> http://rising.blackstar.com/is-there-a-statute-of-limitations-on-copyright-infringement-claims.html/feed 7 http://rising.blackstar.com/eye-on-image-making-photographers-and-the-law-part-2.html http://rising.blackstar.com/eye-on-image-making-photographers-and-the-law-part-2.html#comments Mon, 20 Sep 2010 03:16:24 +0000 David Weintraub http://rising.blackstar.com/?p=13593

Photographers and videographers sometimes come into conflict with law enforcement and other government officials who try to stop them from making images in perfectly lawful places. The officials may believe they are protecting property or privacy rights, or they may simply be trying to exert their authority and control.

The widespread availability of cell phones with cameras has added a new twist to this ongoing conflict. People are now recording their own and other peoples’ arrests. Needless to say, this turn of events has not exactly been popular with police forces across the county.

Your Right to Record Arrests

In an effort to crack down on this increasingly popular practice, prosecutors in some jurisdictions are using laws that make it a crime to record an audio conversation without the consent of both parties. Does this mean a silent video would be OK?

On July 8, 2010, the National Public Radio show “Talk of the Nation” broadcast a segment called “The Rules and Your Rights for Recording Arrests.”

On the show with host Neal Conan were Radley Balko, senior editor of Reason, a libertarian magazine; James Machado, executive director for the Massachusetts Police Association; and Carlos Miller, a photographer who was arrested for photographing police making an arrest.

Be Careful in Massachusetts, Maryland, and Illinois

Massachusetts, Maryland, and Illinois are states where you can be arrested for violating wiretapping laws if you record police without their consent — even if you are on public property — according to Reason editor Radley Balko.

In Boston, a man recorded audio of a drug bust, and then was himself arrested for illegal eavesdropping. If a police officer orders someone to stop recording, that person can be arrested for disobeying a lawful order if they fail to comply.

Felony charges were brought against several people in Baltimore for recording their own arrests. The arrests apparently began after a University of Maryland student was beaten by police last February following a basketball game.

The beating was caught on cell-phone cameras and posted on YouTube. A police-operated security camera trained on the area mysteriously stopped working during the beating, Balko said.

In Massachusetts, there has to be consent from both parties for any audio recording, said the police association’s James Machado. Videotaping usually exonerates the police of any charges of wrongdoing — if the encounter is shown in its entirety, he said.

What police object to, said Machado, is unfavorable “snippets” being broadcast that show only parts of an event. Some police departments routinely videotape arrests in case someone claims the police acted improperly.

Watchdog or Lapdog?

Photographer Carlos Miller runs a blog called “Photography is Not a Crime, It’s a First Amendment Right.” On it, he posts photographs and videos from people who have been hassled by police.

Miller said he was arrested and charged with nine misdemeanors for photographing a police arrest after being told to stop. Miller was on a public road, he said. Later, he was acquitted of all charges, including resisting arrest without violence.

Instead of stopping someone from making images, the police or other officials sometimes demand to see what a photographer or videographer has shot. For example, the police may want to see still or video images from a political protest that turned violent, in order to identify the instigators.

Many journalists — photographers, videographers, and writers — object to this practice. They say it turns the press from watchdogs into a lapdogs and contributes to the public’s distrust of journalists.

Trust in the press would be seriously eroded if the public believed journalists worked hand in hand with law enforcement, routinely turning over unpublished material to further police investigations.

In addition, the First Amendment promise of a free press is compromised if journalists have to worry about Big Brother peering over their shoulders.

Your Photos, Please

On December 11, 2009, photojournalist David Morse, who works for the San Francisco Bay Area Independent Media Center, or Indybay, covered a protest at the home of Robert J. Birgeneau, chancellor of the University of California, Berkeley. The protesters were unhappy about proposed budget cuts and a fee hike at the university.

At one point, the protest turned violent, with people breaking windows and overturning planters. Eight people were arrested by University of California police, including Morse. He said he repeatedly identified himself to police as a journalist, but his press card had expired.

As if this weren’t bad enough, Morse was later served with a warrant — the police wanted to see all of his photographs of the demonstration. The police neglected to tell the judge who signed the warrant that Morse was a working journalist.

California’s journalist shield law prevents police from subpoenaing unpublished information, including photographs, obtained in the course of newsgathering. In June 2010, a judge in the Alameda County Superior Court said that the campus police had obtained Morse’s photographs illegally and ordered them returned.

Your Film, Please

After documentary filmmaker Joe Berlinger released his 2009 film called Crude: The Real Price of Oil, Chevron and two of its executives subpoenaed all of Berlinger’s unused footage. Berlinger’s film accused Chevron of polluting the Ecuadorian rainforests.

Chevron claimed it needed the material to defend against criminal and civil lawsuits in Ecuador and also to aid an international treaty arbitration.

Under U.S. law, federal courts can order the production of evidence needed for foreign cases. Berlinger claimed a First Amendment privilege not to provide Chevron with his unused footage — more than 600 hours.

He also said that supplying the unused footage would break promises of confidentiality he had made to some of his sources.

In May 2010, Judge Lewis A. Kaplan of the District Court for the Southern District of New York issued his ruling.

The good news? Filmmakers are indeed eligible for the qualified privilege available to journalists under New York law.

The bad news? The judge held that Chevron had a compelling need for the unused footage. He also said Berlinger had not proved his confidentiality argument.

Judge Kaplan briefly stayed his order to allow for an appeal.

In July 2010, the U.S. Court of Appeals for the Second Circuit ruled that Berlinger had to turn over those parts of the unused footage that might help Chevron win its cases.

No Privilege, Says U.S. Supreme Court

The U.S. Supreme Court has refused to recognize a First Amendment privilege for journalists that would release them from the requirement — shared by all other citizens — to answer subpoenas and testify in court.

In Branzburg v. Hayes (1972), the Court said that because ordinary citizens enjoy no protection from grand jury subpoenas, journalists can’t hide behind the First Amendment. This applies as well to a journalist who has promised a source anonymity.

The Court tossed the ball into Congress’s court — you want a shield law, you write one. And you can make it as broad or as narrow as you wish.

On March 31, 2009, the House of Representatives passed H.R. 985, the Free Flow of Information Act, which would provide a qualified privilege to journalists seeking to avoid a federal subpoena.

On December 10, 2009, the Senate Judiciary Committee passed S. 448, a Senate shield bill. The bills differ on a number of key points, and there are many issues still up in the air: Who is eligible for the privilege? When can it be overridden?

So you can’t dodge the feds — yet. But many states have shield laws of one form or another to protect journalists in state and local cases. For a state-by-state rundown of journalist shield laws, visit the Citizen Media Law Project.

If You Are Subpoenaed

If you are subpoenaed, contact a lawyer. Do not destroy any of the subpoenaed material, as this can lead to serious charges. Media law experts advise being careful with any promise of anonymity to a source — because you might have to go to jail to keep your promise.

In addition to being experts at their craft, image makers need to be aware of the legal issues surrounding their chosen line of work. I will write more about image makers and the law in future columns.

The material in this column comes from a chapter I wrote on media law for Videojournalism: Multimedia Storytelling, a new textbook by Ken Kobré, professor of photojournalism at San Francisco State University and author of Photojournalism, the Professionals’ Approach, now in its sixth edition. Focal Press will publish Kobré’s new book in 2011.

Meanwhile, if you have had any experience with this perplexing issue, I’d love to hear from you.


]]> http://rising.blackstar.com/eye-on-image-making-photographers-and-the-law-part-2.html/feed 0 http://rising.blackstar.com/eye-on-image-making-photographers-and-the-law-part-1.html http://rising.blackstar.com/eye-on-image-making-photographers-and-the-law-part-1.html#comments Tue, 07 Sep 2010 03:01:40 +0000 David Weintraub http://rising.blackstar.com/?p=13380

Imagine two very different personality types. One likes authority and control and believes in order and security. The other is independent, inquisitive, and perhaps a bit pushy. Both are convinced they are working for the public good. Now, put a badge and a gun on the first type, and hand the second type a camera. Do you see a potential for conflict?

The First Amendment gives photographers and videographers almost unlimited freedom to make images in public places. This includes every place from Wall Street to Main Street — streets, plazas, parks, bridges, shopping malls, industrial parks, city-owned airports, and transit systems.

OK, public places are fair game, but what about people? As long as they are in a public place, you can photograph or video to your heart’s content. This includes politicians, celebrities, police officers, and ordinary people.

A 9/11 Hangover?

Anyone appearing in public has given up what lawyers call “a reasonable expectation of privacy.” It doesn’t matter whether they are central to your image or incidental. (Of course, what you can legally do with those images after you have made them is another matter.)

However, your image-making activities may attract the attention of law enforcement officers or other officials who think what you are doing is illegal and needs to be stopped.

Perhaps the resilient trauma of the 9/11 attacks explains why photographers sometimes run into trouble while photographing in public places. Or maybe it is just the conflict between two very different personality types.

Bert Krages, attorney and author of Legal Handbook for Photographers, says few public places have rules prohibiting photography. But you wouldn’t know that from the way some officials have been behaving.

Exposing Interference with Photographers

The Washington Post has been doing an excellent job reporting on cases in which police have interfered with photographers and videographers who had every right to be making images.

In July, the newspaper’s online edition reported on 10 incidents in the D.C. area over the past two years when photographers on public property aroused the ire of law enforcement officers or other officials.

For example, in 2008 at Washington’s Union Station, a public place, a security guard told a Fox 5 television news crew to stop filming an interview with an Amtrak official. Ironically, the official was explaining that photography is permitted in the station.

In that same venue, a restaurant manager asked a still photographer for his permit to shoot pictures—in an area where no permit or permission is normally required.

In 2009, police officers told a professional freelancer covering Washington’s Chinese New Year celebrations on a public street to stop photographing them in the act of questioning someone standing nearby.

Police Should Not Expect Privacy

Court rulings and official police policy have made it clear that police officers have no reasonable expectation of privacy while on duty in public.

Nevertheless, when D.C. police were ticketing speeders near Grant Circle, they told a photographer who was capturing this seemingly benign public-safety campaign to pack up his gear and leave the area.

Police in our nation’s capital also seem to have it in for Jerome Vorus, a particularly unlucky college student. So far this year, he has been detained twice for making photographs — once on a public concourse at Ronald Reagan Washington National Airport, and once on the street in Georgetown while police were conducting a traffic stop.

Overzealous Security Guards

Pictures of the exterior of the Department of Housing and Urban Development headquarters appear on HUD’s website and on Google Maps. But that didn’t seem to register with one of the building’s security guards, who blocked a photographer from making similar shots.

Not to be outdone in their efforts to protect national security, guards at the Department of Transportation headquarters have been equally zealous. But finally, in 2009, they relented, allowing a photographer to get a shot of the building — after being questioned.

Guards at federal buildings are within their rights to question photographers, but they overstep their authority if they deny permission to photograph a federal building from a public location.

A Night on the Town — and an Arrest

The police and other officials may simply dislike being photographed, or they may truly believe they are upholding the rights of people and of property.

They may also simply want to control the situation and exert their authority, says Jay Bender, the Reid H. Montgomery Freedom of Information Chair at the University of South Carolina’s School of Journalism and Mass Communications, and a lecturer at the university’s law school.

Bender, who is also an attorney for the South Carolina Press Association and the South Carolina Broadcasters Association, tells the story of a photographer working for the State newspaper in Columbia, South Carolina.

The photographer was enjoying a night on the town with friends in the city’s popular Five Points neighborhood. The police, meanwhile, were busy ticketing and towing cars parked in front of various nightspots.

When the photographer went to the lot where the cars had been towed, identified himself as a journalist, and tried to find out what was going on, he was arrested.

“Of course, the arrest was invalid and the charges were ultimately dismissed, because fortunately he had a videotape of the police acting in excess of their authority,” Bender says. “But it’s generally better to avoid the confrontation if you can.”

Getting Roughed Up by the Cops

March 21, 2009, was the deadliest day in its history for the Oakland, California, police department. Four of its officers were killed in two separate incidents.

Retired KGO-TV videographer Doug Laughlin went to Highland Hospital to film the ambulances arriving in front of grieving fellow officers and family members.

Several officers attacked Laughlin, shoved him against a parked car, and broke the viewfinder on his camera — all of which Laughlin caught on film and posted to YouTube.

Despite the fact that he was a journalist covering a newsworthy event from a public vantage point, Laughlin was threatened with arrest and ultimately kept away from the hospital when the police strung yellow crime-scene tape across his path.

Laughlin has filed a federal civil rights lawsuit against the Oakland Police Department in U.S. District Court in San Francisco. He is asking for unspecified damages and an injunction to prevent police interference with journalists.

“The public has a right to be informed and for its journalists to report the news,” says Charles Bourdon, one of Laughlin’s attorneys. “Mr. Laughlin was doing his job to present a newsworthy event to the public and was not at any time interfering with the legitimate actions of the police.”

The Gulf Oil Spill and BP

The Gulf of Mexico is a public place, and no one doubts that the recent oil spill was a newsworthy event. Yet British Petroleum contractors, backed up by the U.S. Coast Guard, prevented a CBS television crew from filming a beach in South Pass, Louisiana.

Coast Guard officers, citing “BP’s rules,” threatened to arrest the CBS crew.

This confrontation and others like it were the subject of an online article July 28 by Mickey H. Osterreicher, general counsel for the National Press Photographers Association. Osterreicher says there were “numerous reports of government interference with press coverage of the Deepwater Horizon disaster in the Gulf of Mexico.”

For example, police detained a freelance photographer in Texas City, Texas, for making images of a BP refinery. A BP employee and local police officers stopped the photographer at a nearby gas station and demanded to see his identification and his digital images.

The reason? “National security.”

An Ongoing Story

Clearly, the rights of image makers and the protections guaranteed by the First Amendment are not always respected by those in authority. I will continue this discussion of image makers and the law in my next column.

The material in this column comes from a chapter I wrote on media law for Videojournalism: Multimedia Storytelling, a new textbook by Ken Kobré, professor of photojournalism at San Francisco State University and author of Photojournalism, the Professionals’ Approach, now in its sixth edition. Focal Press will publish Kobré’s new book in 2011.

Meanwhile, if you have had any experience with this perplexing issue, I’d love to hear from you.


]]> http://rising.blackstar.com/eye-on-image-making-photographers-and-the-law-part-1.html/feed 7 http://rising.blackstar.com/dont-buy-into-the-model-release-myth.html http://rising.blackstar.com/dont-buy-into-the-model-release-myth.html#comments Thu, 26 Aug 2010 03:07:13 +0000 Rohn Engh http://rising.blackstar.com/?p=13089

The myth I’m writing about today has undoubtedly caused thousands of excellent, award-winning photos never to be taken. It’s the myth of the model release for editorial use.

Photography columnists, unaware of their First Amendment rights, have been fanning the fires of this issue for years. A wall of mythology has built up around the subject, and I’ll make the first move to break it down for you:

No, editorial stock photographers: you do not need model releases.

To Inform and to Educate

About two million dollars a day are spent in the publishing of editorial stock photography, where the essential use is to inform and to educate.

Photo buyers in this arena rarely require a model release, unless the photo is so sensitive that it might compromise a person in some way. These are rare cases involving highly charged subjects, such as drug abuse or certain medical issues.

A good rule of thumb would be to ask yourself, “Would a newspaper photographer ask for a model release in this situation?”

Whatever the answer, take the picture anyway. The photo editor will be the one to determine if the image can be used.

Wearing Two Hats

You might now be asking, “So why was I under the impression that model releases are always required?”

Part of the reason is that most teaching and training for working photographers in the United States is slanted to commercial photography, where you do need a model release.

As stock photography has grown and become more prevalent, commercial photographers have expanded into media photography, and brought with them the assumption that a model release is always required.

Some editorial stock photographers like to get model releases so they have the flexibility to use their photos for commercial purposes, such as advertisements or endorsements.

As my friend Jim Cook, creator of METAMachine, says, “My accountant loves me for getting model releases; so does my wife.”

Some photographers can wear two hats, commercial and editorial. Try it. You might be built for it.

Personally, I’m not. I stick to the editorial side of selling stock.

A Powerful Ally

You — as an editorial stock photographer operating a business in a free society — have a powerful ally on your side. It’s the First Amendment of the U.S. Constitution.

The First Amendment, in effect, says you can take photographs in public (no model releases needed) as long as you are not breaking any local laws, such as trespassing.

It would be a bureaucrat’s dream for officials to be able to say, “You can’t photograph in my school, my police precinct, my park.” In reality, these people (school principals, police officers, etc.) work for you. They are your civil servants. Your taxes pay for their buildings, equipment, and salaries.

As long as you are not interrupting their normal course of duties, you can photograph them.

Deep Pockets

From time to time, there are lawsuits challenging the rights of photographers. But if you examine each case, the plaintiff almost always goes after the publisher with deep pockets, not the photographer. And the plaintiff rarely wins.

Large publishing houses, which spend $50,000 to $150,000 per month for photography, are vigilant about protecting their First Amendment rights, and in so doing, they protect your First Amendment Rights.

So go out and photograph freely in public. You’ll be in the good company of Margaret Bourke-White, Henri Cartier-Bresson, Dorothea Lange, Arthur Rothstein, and others. And the world will be a better informed and educated place for your efforts.


]]> http://rising.blackstar.com/dont-buy-into-the-model-release-myth.html/feed 12 http://rising.blackstar.com/eye-on-image-making-what-the-first-amendment-matters-part-3.html http://rising.blackstar.com/eye-on-image-making-what-the-first-amendment-matters-part-3.html#comments Tue, 03 Aug 2010 03:08:47 +0000 David Weintraub http://rising.blackstar.com/?p=12781

On Sunday, June 13, 1971, the New York Times ran a front-page story by reporter Neil Sheehan titled “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement.”

This story and others that followed were based on a secret government study, commissioned by Secretary of Defense Robert S. McNamara, that described the history of U.S. involvement in Southeast Asia, from World War II until 1968. The Pentagon study was massive — 30 to 40 authors churned out 2.5 million words, 3,000 pages of analysis, and 4,000 pages of official documents.

According to transcripts of phone conversations President Richard M. Nixon had that Sunday with Henry Kissinger, his national security advisor, William Rogers, his secretary of state, and Alexander Haig, Kissinger’s assistant, Nixon seemed surprisingly unconcerned about the article, instead remarking favorably on the week’s low casualty figures from Vietnam and the coverage of his daughter Tricia’s wedding, which also appeared on the Times’s front page.

The Pentagon Papers Case

After all, the Pentagon study, like the war itself, was something Nixon had inherited from previous administrations —the study reflected badly on presidents Johnson, Kennedy, and others, not on Nixon or his administration. Discovering and punishing whoever leaked the secret documents seemed to be Nixon’s main interest.

Attorney General John Mitchell, however, was not happy. On the evening of June 14, he called the Times and also sent the newspaper a telegram telling it to stop publishing the Vietnam stories, which included excerpts of the secret Pentagon study. The Times refused Mitchell’s request, and the government went to court to obtain an injunction to block publication of the stories.

The case was argued before U.S. District Judge Murray I. Gurfein, who was in his first day on the bench, having just been sworn in the previous week.

The case before Judge Gurfein represented a classic clash between government and the press. The government argued that by publishing the secret Pentagon study, the Times had damaged national security and given aid and comfort to the county’s enemies.

The Times argued that the First Amendment prevents censorship of the press, and that the law being invoked by the government was an anti-espionage statute that Congress had never meant to apply to the press.

Judge Gurfein ruled that the Times had to stop publishing for four days, until both parties could prepare for a hearing on a permanent injunction. In a ruling on June 19, Judge Gurfein denied the government’s request to permanently block publication.

A Heavy Burden

A series of quick legal maneuvers resulted in a ruling by the U.S. Court of Appeals for the Second Circuit that further delayed publication by the Times until secret hearings before Judge Gurfein could determine which parts of the Pentagon study “pose such grave and immediate danger to the security of the United States as to warrant their publication being enjoined.”

Meanwhile, the Washington Post and the Boston Globe entered the fray, publishing articles of their own, and both papers were immediately sued by the government.

Ultimately, the cases involving the New York Times and the Washington Post landed on the doorstep of the U.S. Supreme Court. On June 30, 1971, a little more than two weeks after the Times had begun its series, the Court, in New York Times Co. v. United States, ruled 6 to 3 that the government had not met the “heavy burden” of justifying a prior restraint on publication.

Justice Hugo Black did not mince words:

I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment…. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

Thus, in a little more than 50 years, the Court had moved from punishing people for printing antiwar leaflets and giving Socialist speeches to allowing the nation’s most prominent newspapers to publish stolen government documents during wartime.

Evolution of the Court

How did this evolution in the understanding of the First Amendment take place?

Interestingly, it was not the elite press that pushed the Court toward a more expansive interpretation of “freedom of the press.” In fact, the New York Times entered the First Amendment battle rather late, when it won a defamation case during the Civil Rights era brought by L. B. Sullivan, a Montgomery, Alabama, city official.

That case itself, however, wasn’t about anything Times reporters had written. Instead, it concerned a paid ad placed in the newspaper by the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South,” which Sullivan believed had defamed him.

After the Court’s ruling in Times v. Sullivan (1964), public officials were faced with a nearly insurmountable obstacle to win damages against the press for anything published about their official conduct. Later rulings extended this obstacle to so-called public figures — people who find themselves, willingly or unwillingly, at the center of newsworthy events.

The Thought We Hate

But in 1927, it wasn’t the New York Times or the Washington Post on trial. It was the Saturday Press, a weekly newspaper in Minnesota published by Jay M. Near.

According to Anthony Lewis, author of Freedom for the Thought That We Hate: A Biography of the First Amendment, Near was “a virulent anti-Semite” who wrote that a Jewish gangster was in control of gambling, bootlegging, and racketeering in Minneapolis, and that police and government officials were turning a blind eye toward crime and corruption.

After the ninth issue of Near’s paper, a court order shut down the Saturday Press. The legal basis? A 1925 Minnesota law, called the Public Nuisance Law, that allowed courts to close publications critical of state legislators and government officials.

The law targeted “malicious, scandalous and defamatory newspapers.” Truth was a defense, but only if the newspaper had published its articles “with good motives and for justifiable ends.”

The state supreme court offered no help for Near, and neither did his fellow newspaper publishers in Minnesota. However, Robert Rutherford McCormick, the publisher of the Chicago Tribune, sensing that the First Amendment was at stake, offered Near the use of the paper’s lawyer, Weymouth Kirkland.

Near’s case made it to the U.S. Supreme Court, which held 5 to 4 in Near v. Minnesota (1931) that the Minnesota’s Public Nuisance Law was an unacceptable prior restraint forbidden by the First and Fourteenth amendments.

Five years after Near, the four dissenting justices changed their minds when Huey Long — the populist governor of Louisiana called by some a dictator and by others a champion of the poor — decided to tax newspapers as a way of controlling the press. In Grosjean v. American Press Co. (1936), the Court saw through the sham that Louisiana’s tax was merely a tax:

The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.

With its rulings in Near and Grosjean, the U.S. Supreme Court set a nearly unreachable standard for prior restraint and paved the way for the Pentagon Papers case: the only time the government can restrain publication is in cases involving the most serious breaches of national security.

Advocating “Revengence”

If you thought Jay Near was an unsavory character, albeit perhaps a crusading journalist, wait until you meet Clarence Brandenburg.

He was a Ku Klux Klan leader in Ohio. One day, he called up a Cincinnati television station and invited a news team to film a KKK rally. Segments of the team’s report were later broadcast locally and nationally.

Brandenburg was convicted under the Ohio Criminal Syndicalism statute, which outlawed advocating crime, sabotage, violence, or terrorism to accomplish “industrial or political reform.” He was fined $1,000 and sentenced to prison for one to 10 years.

Brandenburg appealed on First and Fourteenth amendment grounds. The state appeal court affirmed his conviction, and the state supreme court dismissed his appeal, saying there was no substantial constitutional question.

The U.S. Supreme Court, however, agreed to take Brandenburg’s case. The television footage showed armed and hooded figures watching a cross being burned. Although the audio quality was poor, the justices could hear derogatory references to blacks and Jews.

Brandenburg made a speech advocating “revengeance” if the government continued “to suppress the white, Caucasian race.” Brandenburg promised a Fourth of July march on Congress with 400,000 Klansmen in the streets.

Didn’t the state of Ohio have the right to outlaw this type of dangerous advocacy of violence? In Brandenburg v. Ohio (1969), the Court said no.

Overruling its 1927 decision in Whitney v. California, the Court said advocacy was protected by the First and Fourteenth amendments. Only when advocacy rose to the level of “imminent lawless action” could the speech be punished. And even then, the advocacy had to be “likely to incite or produce such action.”

Need for Constant Vigiliance

Despite its seeming invincibility, the First Amendment needs constant protection. Although prior restraint seems to be a thing of the past, journalists are sometimes prevented from doing their job by overzealous police or government officials.

Photographers and videographers are told they can’t shoot newsworthy events from public places.

Reporters and documentary filmmakers are served with subpoenas.

And the consolidation of media outlets limits the number of independent voices being heard.

A free country depends on a free press. That’s why the First Amendment matters.

I hope you have enjoyed this three-part series on the First Amendment. For further information, here are two great resources:
• The Reporters Committee for Freedom of the Press
• The First Amendment Center

As always, I look forward to your comments!


]]> http://rising.blackstar.com/eye-on-image-making-what-the-first-amendment-matters-part-3.html/feed 1 http://rising.blackstar.com/eye-on-image-making-why-the-first-amendment-matters-part-2.html http://rising.blackstar.com/eye-on-image-making-why-the-first-amendment-matters-part-2.html#comments Tue, 20 Jul 2010 03:06:59 +0000 David Weintraub http://rising.blackstar.com/?p=12584

In America today, we can say and publish just about anything we want. The First Amendment guarantees freedom of speech and of the press — and by extension, freedom of thought and freedom of expression. But despite the fact that the First Amendment was ratified in 1791 as part of the Bill of Rights, the nearly unlimited freedoms we enjoy today have actually evolved only within the last 100 years.

The First Amendment’s Evolution

The interpretation of the First Amendment’s injunction that “Congress shall make no law….abridging the freedom of speech or of the press….” is the province of the U.S. Supreme Court. Until the beginning of the 20th century, however, the Court was largely mute on the subject.

When the Court finally did begin interpreting the amendment, the cases it ruled on did not involve crusading journalists or courageous editors. Instead, they stemmed from government efforts during wartime to suppress the activities of those it considered radicals and subversives — anarchists, communists, socialists, and immigrants.

The First Amendment’s evolution into a protective umbrella that now tolerates hardly any restrictions on what can be said and what can be printed is a remarkable story — about the Supreme Court’s role in shaping our society, and the role of individual judges in shaping the court.

The Espionage Act

In 1917, the United States entered World War I, and Congress passed the Espionage Act, which made it a federal crime during wartime to interfere with military recruiting, enlistment, or the draft. It also became a crime during wartime to “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty” in the armed forces.

Anthony Lewis, author of Freedom of the Thought That We Hate: A Biography of the First Amendment, says prosecutions under the Espionage Act swept up hundreds of people who criticized the war in speech or in print, deeming them “disloyal.”

Charles Schenck, general secretary of the Socialist Party of America, and his codefendants were found guilty in federal court of violating the Espionage Act by distributing leaflets urging men to resist the draft.

The leaflet condemned the war against Germany as a capitalist crusade being waged on behalf of Wall Street. It urged men called up for conscription to assert their rights and not to be intimidated. The leaflet supported a petition campaign to repeal the draft and also included the text of the 13th Amendment, which ended slavery and involuntary servitude.

The appeal, Schenck v. United States, was decided by the U.S. Supreme Court in 1919. The Court upheld the guilty judgment against the plaintiffs.

Prior Restraint Only?

Until Schenck, the philosophy of the Court had been that the First Amendment’s main protection was against prior restraint. In other words, the government could not censor speech or publication ahead of time, but it could certainly punish the speaker or the publisher afterward.

Justice Oliver Wendell Holmes Jr. wrote the 1907 U.S. Supreme Court opinion in Patterson v. Colorado, upholding the contempt-of-court conviction of an editor, Thomas M. Patterson, for publishing articles and a cartoon critical of the Colorado supreme court.

In Patterson, Holmes refused to read the 14th Amendment as extending First Amendment protection to defendants in state trials; he refused to allow the truth of the articles as a defense; and he wrote that the main purpose of the First Amendment speech and press guarantees was to prevent prior restraint, not to prohibit subsequent prosecution for what was written or spoken.

Writing for the Court in Schenck, however, Holmes left open the possibility that the First Amendment prohibited more than just prior restraint. But he had no trouble finding a justification to punish Schenck and his colleagues for their antidraft leaflets. After all, the United States was at war, and these radicals were trying to interfere with the war effort.

A Clear and Present Danger

The character of every act, Holmes famously wrote, depends upon the circumstances in which it is done: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Holmes then created a test for First Amendment protection: do the words themselves, and the circumstances under which they are spoken, create “a clear and present danger” of causing “the substantive evils that Congress has a right to prevent”?

Two other Espionage Act cases decided in 1919 — Frohwerk v. United States and Debs v. United States — yielded basically the same results. Both men were sentenced to harsh prison terms for expressing socialist, antidraft, and antiwar sentiments during wartime.

We Dissent

But near the end of 1919, something remarkable happened. Holmes, joined by Justice Louis D. Brandeis, dissented from the decision in Abrams v. United States affirming the conviction, under an amended Espionage Act, of four Russian immigrants. Their crime? Tossing leaflets from a Manhattan rooftop condemning U.S. military intervention in the Russian Revolution and calling for a general strike. Their sentence? The three men got 20 years in prison; their young female colleague got 15 years.

In his dissent, Holmes repeated his “clear and present danger” test but added the words “imminent” and “forthwith.” Did publication of what Holmes called “a silly leaflet by an unknown man” really constitute an imminent threat to the United States government and its wartime activities? Holmes wrote that he believed the four had as much right to publish their leaflets as the government had to publish the Constitution.

Holmes then went on to say that “…the best test of truth is the power of the thought to get itself accepted in the competition of the market….” All opinions, even those “that we loathe and believe to be fraught with death,” should be allowed to circulate freely, except when they immediately threaten the existence of the county.

A Seismic Shift

During the 1920s, Holmes and Brandeis continued to dissent, as First Amendment defenses came to the Court and were rejected by a majority of the justices. Gitlow v. New York (1925), Whitney v. California (1927), and United States v. Schwimmer (1929) provided ample opportunity for Holmes and Brandeis to use their eloquence and logic to start a seismic shift in First Amendment interpretation.

Did the writings of Benjamin Gitlow, a member of the Left Wing Section of the Socialist Party charged under New York’s criminal anarchy laws, constitute a imminent threat to the United States? “Every idea is an incitement,” Holmes wrote:

It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth….If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

Was Anita Whitney’s membership in the Communist Labor Party of California — an organization she helped found — a threat to the existence of the county? “Fear of serious injury cannot alone justify suppression of free speech and assembly,” Brandeis wrote:

Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.

Should Rosika Schwimmer, a Hungarian immigrant, be denied U.S. citizenship because she was a pacifist who refused to swear she would bear arms in defense of her county? Holmes wrote the words that gave Lewis the title of his book:

Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.

One bright spot in the 1920s — in Gitlow the Court for the first time ruled that the Fourteenth Amendment applied free-speech and free-press protections to defendants in state courts. And state courts now became First Amendment battlegrounds.

The Theory Behind the First Amendment

Although the opinions written by Holmes and Brandeis in the 1920s did not represent the law of the land, they expanded the legal theory behind the First Amendment. Under the Holmes and Brandeis interpretation, the First Amendment was not merely a prohibition against prior restraint — it was fundamental to the notions of American freedom and liberty. And only the gravest threat should be allowed to interfere with its protections.

The coming decades would see the Holmes and Brandeis interpretation of the First Amendment take hold. This shift in interpretation will be the subject of my next column.


]]> http://rising.blackstar.com/eye-on-image-making-why-the-first-amendment-matters-part-2.html/feed 2 http://rising.blackstar.com/eye-on-image-making-why-the-first-amendment-matters-part-1.html http://rising.blackstar.com/eye-on-image-making-why-the-first-amendment-matters-part-1.html#comments Thu, 01 Jul 2010 03:02:56 +0000 David Weintraub http://rising.blackstar.com/?p=12355

In my previous column, I wrote about the Newseum in Washington, D.C., which is an interactive museum dedicated to preserving and interpreting more than 500 years of journalism. I said that one of my favorite parts of the Newseum was a permanent exhibit called the First Amendment Gallery.

Congress Shall Make No Law

Like many school children, I learned to recite the First Amendment by heart — and I have a vague memory (it was a very long time ago) there was a song involved to help us remember the 45 words that have shaped our nation’s history.

When I began photographing and writing for newspapers and magazines in the 1970s, I knew that the First Amendment protected — with a few exceptions — my activities as a journalist and also the right of the publications I worked for to publish whatever they wanted.

However, it wasn’t until I went to journalism school at the University of South Carolina a few years ago to get my master’s degree that I learned about the intricate and often turbulent history of the First Amendment. A required course called Media Law exposed us to a wide range of topics, but it was the module on the First Amendment that has stuck in my mind as being revelatory — showing me how much I didn’t know about something I took so much for granted.

We Know What It Says, But What Does It Mean?

What does the First Amendment say and what does it mean? That was the question we grad students were asked to confront.

The First Amendment says “Congress shall make no law…abridging the freedom of speech, or of the press….” Sounds simple and absolute, right? But what did these terms mean to the people who wrote them and made them part of our Constitution?

Unfortunately, there is little direct evidence to go by — in terms of discussion and debate records — to determine the original intention of the amendment.

But there is circumstantial evidence aplenty. After all, the Founders were intimately familiar with British law, which had a long history of abridging freedom of press and speech. Abridgment came in two forms: prevention of publication through government licensing or censorship, and punishment after publication for content deemed unacceptable by the government or the church.

The first form of abridgment, called “prior restraint,” ended in England in 1694, when Parliament let the law lapse. But the second form, called “seditious libel,” was still in effect in England during the time America was its colony.

Truth was no defense against a charge of seditious libel — what mattered was the perceived damage done to a public official’s reputation. The maximum punishment was death.

The Sedition Act

If it was to have any meaning at all, the First Amendment clearly prevented prior restraint — its authors were not likely to reintroduce a legal concept that had been dead in England for nearly 100 years. But what about punishment after publication?

On July 14, 1798, President John Adams signed the hastily passed Sedition Act, which made it a federal crime to write, speak, or publish anything “false, scandalous and malicious” against the federal government, the Congress, or the president, with the intent to defame them, bring them “into contempt or disrepute,” or “stir up sedition.”

The law was prompted by a feud between Adams and his vice president, Thomas Jefferson — notice that the Sedition Act says nothing about defaming the vice president.

It was also the result of a squabble between two political parties, the Federalists and the Republicans, and fears that the increasingly radical aspects of the French Revolution could spread to the new nation. Editors of pro-Jefferson newspapers and political pamphleteers were prosecuted, as was a Republican representative to Congress from Vermont.

The Supreme Court was never asked to rule on the law’s constitutionality, and it was allowed to expire on March 3, 1801, the day before Inauguration Day, as provided in the act.

In fact, it would be more than 100 years before a new federal law finally spurred the Supreme Court to wrestle with the meaning of the First Amendment. Ultimately, however, the Sedition Act backfired — it contributed to Jefferson’s victory over Adams in the 1800 presidential election and the eventual demise of the Federalists.

Freedom for the Thought That We Hate

In 2007, Anthony Lewis published a book called Freedom for the Thought That We Hate: A Biography of the First Amendment.

Lewis was a reporter and columnist for the New York Times from 1955 through 2001, twice winning the Pulitzer Prize for national reporting. Since 1983, he has been the James Madison Visiting Professor at Columbia University and has also lectured at Harvard Law School and other universities.

Lewis is the author of three other books: Gideon’s Trumpet, about the right to legal counsel; Portrait of a Decade: The Second American Revolution, about the Civil Rights movement; and Make No Law: The Sullivan Case and the First Amendment, about libel and the press.

Freedom for the Thought That We Hate should be required reading for every journalist — and anyone else interested in speech and press freedom.

The book’s title comes from a dissent to a 1929 Supreme Court decision, United States v. Schwimmer, written by 88-year-old Justice Oliver Wendell Holmes Jr.

The case concerned Rosika Schwimmer, a Hungarian pacifist living in Illinois, who wanted to become a U.S. citizen but refused to swear that she would personally bear arms in defense of the country. The U.S. District Court in northern Illinois denied Schwimmer’s petition, the Circuit Court of Appeals reversed the denial, and the case ended up in the U.S. Supreme Court.

Schwimmer ultimately lost her case, but in his dissent, Justice Holmes showed why it is his expansive view of the First Amendment — along with that of his colleague and frequent co-dissenter Justice Louis D. Brandeis — that eventually prevailed:

Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.

Formative Years for the First Amendment

The early years of the 20th century were formative ones for the legal interpretation of the First Amendment. As Lewis points out, it wasn’t until 1919 that a Supreme Court opinion — albeit a dissenting one by Holmes and Brandeis in Abrams v. United States — first endorsed a First Amendment claim of freedom.

Why this time lag of more than 100 years from the ratification of the Bill of Rights — of which the First Amendment is a part — until the Supreme Court began a serious discussion over the meaning of the amendment?

First, says Lewis, the Supreme Court rules on matters of federal, rather than state, law. After the federal Sedition Act expired in 1801, there was no federal law concerning press or speech freedom until 1917, when the United States entered World War I, and Congress passed the Espionage Act.

State laws restricting speech and press freedom were not considered by the Supreme Court to be within its purview until the 1925 decision in Gitlow v. New York, some 57 years after the Fourteenth Amendment — theoretically at least — extended Bill of Rights protection to defendants in state trials.

Second, American society was undergoing profound changes — immigration, industrialization, urbanization — that brought a flood of new ideas, many of which appeared to threaten the established order, such as trade unionism, socialism, communism, anarchism, and radicalism of other stripes. These ideas seemed especially dangerous during wartime.

It ultimately fell to the Supreme Court to untangle the messy web of competing ideas and interests that pitted freedom of expression against society’s demand for order and public safety.

In my next column on this subject, I’ll discuss the evolution of the First Amendment, as interpreted by a Supreme Court in transition.

Happy Fourth of July!


]]> http://rising.blackstar.com/eye-on-image-making-why-the-first-amendment-matters-part-1.html/feed 0 http://rising.blackstar.com/why-professional-photographers-shouldnt-hate-creative-commons.html http://rising.blackstar.com/why-professional-photographers-shouldnt-hate-creative-commons.html#comments Tue, 29 Jun 2010 11:20:22 +0000 Jim Pickerell http://rising.blackstar.com/?p=12172

Most professional photographers are adamantly opposed to Creative Commons licenses, which encourage free uses of images. But in at least one important way, I think Creative Commons is a good thing for image sellers.

With widespread use, Creative Commons is establishing in the minds of users the very important copyright law principle that “All Rights [are] Reserved” by the creator or copyright holder of any work, and that it is left to the creator to specify who has what rights to make what uses of the work and at what cost.

Creative Commons defines six levels that grant limited free uses to content found on the Web. All but one of the six Creative Commons licenses involve some type of restriction, and even the last requires credit be given.

Educating the “Right Click and Save” Crowd

How does this help image sellers?

There is widespread misunderstanding as to what rights people have to use anything found on the Web, including images. Because Creative Commons images are perceived as being “free,” the standard is broadly accepted and promoted by the Internet community.

But Creative Commons does more than promote the idea of giving away content. It also promotes the notion of reserving rights, as well as that anyone who wishes to use an image they did not create must obtain some type of license for its use.

The fact that there are six different variations of a Creative Commons license also establishes that the allowed free use is based entirely on the nature of the use — some uses are allowed, while others are not.

Those who charge fees for uses of their images are a very small segment of the Internet community. As such, this group has always had a difficult time getting their message of “compensation for use” accepted by the community at large.

With Creative Commons, a much larger and more diverse community is saying: “Yes, you can use my images for free, for certain specified uses, but there are limits, and I must be compensated at least by credit.”

This makes it far more difficult for the “right click and save” crowd to argue that they know nothing about usage rights. As more creators recognize that it is wise to put some limits on how their images can be used without their knowledge, more and more people will become aware of what is expected whenever they want to use an image they find online.

Five Licensing Options

Creative Commons helps photographers by teaching people that when they think about using images, they need a license of some kind, and that there are a whole range of available options.

As of today, licensing options include:

• Creative Commons. The allowable rights are specified in six license types, and the user is required to pay nothing as long as the use is within the specified parameters.
• Microstock. A lower-priced offshoot of traditional royalty-free, microstock sites base fees on file size. Virtually unlimited use is allowed, but the rights granted vary slightly from one distributor to the next.
• Subscription. The customer is allowed to download a specified number of images from a site, over a specified period of time, for a fixed fee.
• Traditional Royalty-Free. Fees, which vary among different distributors, are based on file size delivered and, once the fee is paid, virtually unlimited use is allowed. Microstock licenses are usually slightly more restrictive.
• Rights-Managed. Fees are based on the specific uses made of images. Discounts are usually available for customers that make volume purchases.

]]> http://rising.blackstar.com/why-professional-photographers-shouldnt-hate-creative-commons.html/feed 5 http://rising.blackstar.com/when-buying-software-overseas-is-this-hard-no-wonder-piracy-is-rampant.html http://rising.blackstar.com/when-buying-software-overseas-is-this-hard-no-wonder-piracy-is-rampant.html#comments Wed, 16 Jun 2010 03:13:14 +0000 Craig Ferguson http://rising.blackstar.com/?p=12117

I’ve found that many software companies time their new releases for late at night in the United States. That’s lunchtime here in Taiwan. So when I learned over lunch, via Twitter, that Adobe Lightroom 3 had been released, I immediately went to the Adobe site to buy my copy.

I should have had the jump on my sleeping American friends, right? It didn’t work out that way.

Address Not Accepted

I downloaded the trial version. As soon as I confirmed that it had installed properly and was able to read my Lightroom 2 catalogs, I clicked “Buy.”

Nothing happened. Then I got a message from Adobe saying it could not accept my online payment because my registered location was Taiwan.

Unfortunately, as an ex-pat photographer based here for seven years and married to a Taiwanese citizen, I no longer kept any bank accounts or addresses registered elsewhere.

What to do?

Finding a boxed copy in a store here would be close to impossible. It would need to be specially ordered and take at least 6 weeks to arrive. Many local distributors also won’t accept upgrade pricing — only the full retail price.

When Lightroom 2 was released, I had a friend on a business trip to the United States buy it for me there, but no such luck this time. I contemplated making a quick trip to Hong Kong to buy a boxed copy — but this would add $150 in plane fare to the cost of my purchase.

BitTorrent and Other Solutions

I turned to Twitter and Facebook, asking if anyone had solutions for me. They did — and how.

A surprisingly large number of photographers suggested I simply wait for Lightroom 3 to be available on BitTorrent and download an “alternative” version. In other words, skip the runaround and get a pirated copy.

I didn’t want to go there. Fortunately, one Twitter follower had another idea; he suggested I try Bundle Box, a site that allows people outside the United States to have a virtual U.S. address.

Returning to the Adobe store, I created an Adobe ID using my new Bundle Box address. I then went back to the Lightroom 3 product page, clicked on “Buy,” filled in the credit card details and I was done!

Or not.

One Final Hurdle

Adobe accepted my payment and informed me that a serial number would be sent in a separate e-mail and would appear in the “Your Orders” section. But when I got there, instead of a serial number, I got this message: “Contact Customer Service.”

Of course, it was after hours in the United States, so I had to wait till 8 p.m. my time to call. Then I had to wait on hold for someone to talk to me.

Sitting on hold on an international call is not something I normally like to do, but it’s still cheaper than a flight to Hong Kong would have been. After someone answered, I got transferred around a couple of times — but when I finally reached the right person, everything got sorted out. I got my serial number and my purchase was complete.

After going through this experience, though, I wonder how many people would have stopped looking for legal solutions and would have simply downloaded a copy over BitTorrent instead? Adobe and other software makers, take note.


]]> http://rising.blackstar.com/when-buying-software-overseas-is-this-hard-no-wonder-piracy-is-rampant.html/feed 12 http://rising.blackstar.com/at-too-many-museums-its-check-your-camera-at-the-door.html http://rising.blackstar.com/at-too-many-museums-its-check-your-camera-at-the-door.html#comments Mon, 14 Jun 2010 03:08:29 +0000 David Saxe http://rising.blackstar.com/?p=12072

When I walked into the museum in Boca Raton, Fla., the first thing I noticed were the signs warning visitors not to take photographs, and instructing us to check our cameras at the entrance.

I had my Leica and two lenses with me and had no interest in checking them, so I tucked my camera in my bag, bought a ticket and began wandering about the place.

Not Responsible for Checked Items

About an hour into my visit, a security guard approached me.

“Excuse me, sir. Is that a camera in your bag?” she asked.

“Yes,” I answered.

“We have a very strict policy about photography equipment — no exceptions,” she said firmly. “You cannot continue unless you go back and check your camera.”

I gave in and walked back to the entrance where the checkroom was. Behind the counter were two signs. The first, of course, reiterated that all camera equipment had to be checked. The second sign, just below it, said “Not responsible for checked items.”

I got my money back and left.

Too Many Lawyers

Unfortunately, too many museums have these kinds of restrictions on photographers. It’s like their boards of directors are made up entirely of retired lawyers.

Right near my home in West Palm Beach is the Norton Museum, which is a nice facility. But when I inquired about their policy regarding cameras, I was told that photographs were only allowed outside in the sculpture garden — not inside the museum.

“You mean flash photography is not allowed, right?” I asked.

“No, all photography,” I was told.

It made no sense to me. I could see how flash might be a problem inside the museum; over the long term, it could negatively affect the paintings and drawings. But to permit photography outside and forbid it entirely inside — where’s the logic in that?

A Popular Target

Photographers are a popular target when it comes to making rules forbidding things. Restricting photographers in museums is particularly ironic; you’re putting the clamps on artists who are admiring the work of other artists.

Could you imagine Van Gogh having to get a permit to paint a drawbridge? How about Henri Cartier-Bresson being forced to check his camera so he could look at his own photographs?

What’s interesting to me is that while so many museums have these restrictions, the greatest art collections in the world do not. The Louvre, the Metropolitan Museum, the Museum of Modern Art, and the National Gallery of Art all permit photography on their premises (although sometimes flash is forbidden).



The photograph above was taken a few years ago in the Louvre. I bought my entry ticket, walked past a sign that said flash photography was not allowed, and I was in. I spent the next few hours photographing the people visiting the place. No one bothered me.

If It’s Good Enough for Rembrandt

A few weeks ago, I visited the National Gallery. At the entrance, a guard welcomed me. He looked into my camera bag for security reasons and then let me through. That was it.

The National Gallery has probably the finest collection of art in the United States. Everywhere I went, there were tourists with their little pocket cameras snapping pictures of their kids, the paintings and anything else that got their attention.

These people were not taking pictures of the work of lesser-known artists, like what appears on the walls in Boca Raton. These rooms were filled with Rembrandts, Van Dycks and Bruegels — the mother lode of art.

And yet, the National Gallery had no restrictions. Even flash was no problem.

Until I walked into one room, where a guard approached me.

In this room, the guard told me, photography was not allowed.

“Why not?” I asked.

He explained that the room contained a visiting exhibit. Because the National Gallery did not own the artwork, they could not allow pictures.

“Lawyers,” I grumbled.

Photo © David Saxe


]]> http://rising.blackstar.com/at-too-many-museums-its-check-your-camera-at-the-door.html/feed 21 http://rising.blackstar.com/the-photography-industry-needs-fewer-lawyers-and-more-trust.html http://rising.blackstar.com/the-photography-industry-needs-fewer-lawyers-and-more-trust.html#comments Tue, 13 Apr 2010 03:08:16 +0000 Paul Melcher http://rising.blackstar.com/?p=11251

It creeps slowly under your door when you are not paying attention. It looks friendly, but it’s not. It uses smiles and persuasion to convince you of things you do not need. It builds walls around everyone and breaks any form of human connection. It’s the ultimate relationship killer.

May I introduce to you … the lawyer.

Sowers of Mistrust

Like many other industries, the photo business is now plagued by an overabundance of overfed lawyers who want to intervene in every step of your relationships, whether with clients, colleagues, photographers, or anyone you might interact with — now or in perpetuity.

The photography world was ripe for the intrusion. What was traditionally a handshake business with hardly any paperwork has become a profitable battleground for those who preach the “ultimate rule of the law.” Not only have lawyers destroyed the handshake (which had worked quite well for decades); they have also succeeded in redesigning our little world into a landscape of suspicion, fear, liabilities and potential horror stories.

They thrive on fear, and that’s how they sell their services. They insinuate doubt into every relationship in order to take control of them. And then, they insert their fee.

Like a communication toll, they start generating their income every time you use their service to make contact with the other party. That’s right; you’re no longer dealing with a person, but a “party.” Objectification is their key weapon in turning trust into suspicion.

Not Qualified to Drive

All of this would be OK, I suppose, if what they said or did were useful. But it’s not.

From the Corbis lawyer who compares Chris Usher’s images to nails to the New York Times counsel who declares that because a print was sent once for usage, it thus belongs to them forever, it’s the rule of “anything goes,” the absurd.

Because they were bred and fed by law, they start to believe that everything that comes out of their mouth is automatically law. They confuse their roles with that of a judge.

Unfortunately, many in our business fall into their traps and let them dictate business decisions. They buy into the paranoia. It’s like giving the wheel of your car to a juggler who doesn’t have a driver’s license. They are an expert in their field, for what it’s worth, but they aren’t qualified to take to you where you need to go.

Lawyers are the kings and queens of zero-risk management. They destroy cooperation by insisting on protection against every remotely possible unwanted outcome or disaster scenario.

But risk aversion is not what the photography business is about. We take risks in this business every day — from the news photographer going to shoot a war, to the photo editor hiring a new photographer for the first time. Photographers take a risk every time they shoot before being paid. It’s just the nature of what we do.

And 99.9% of the time, it works out just fine.

But lawyers want to convince you that things will go wrong 99.9% of the time. If we really faced that level of risk, most of us wouldn’t get out bed in the morning.

Shake Hands and Mean It

Listen to me: if you want to be in an industry that doesn’t require taking on some risk, get out of the photography business and find something else to do. Don’t pester us with your greedy lawyers. A signature at the bottom of a piece of paper never saved anyone, anyway.

If you’re in the mood to open your wallet, don’t waste your money on a lawyer. Invest it in marketing. Take a photo editor out for lunch or drinks. Shake hands and mean it. Get out from behind that wall of legal paperwork and begin creating relationships of trust.


]]> http://rising.blackstar.com/the-photography-industry-needs-fewer-lawyers-and-more-trust.html/feed 4 http://rising.blackstar.com/should-international-photographers-register-their-images-with-the-u-s-copyright-office.html http://rising.blackstar.com/should-international-photographers-register-their-images-with-the-u-s-copyright-office.html#comments Wed, 03 Feb 2010 15:15:48 +0000 Carolyn E. Wright http://rising.blackstar.com/?p=9849

Black Star Rising reader Richard Cave sent us the following question:

Being a U.K. freelancer, if I as a U.K. resident put my pictures on the Web, do I need to register my images with the U.S. Copyright Office? The reason I ask is that we are no longer local, but now global.

Good question, Richard. Most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions.

Both the U.S. and U.K. are members of the Berne Convention for the Protection of Literary and Artistic Works. Under the Berne Convention, which the U.S. joined in 1989, photographers are not required to include a copyright notice (e.g., © 2006 John Doe) with their images. This is because the Berne Convention prohibits formal requirements that affect the “exercise and enjoyment” of the copyright.

U.S. law, however, still provides certain advantages for use of a copyright notice. For example, the use of a notice can defeat a defense of “innocent infringement.”

If your photos are taken in a country that is a signatory to the Berne Convention, you do not have to register your photos with the U.S. Copyright Office before filing a lawsuit in the U.S. for copyright infringement.

Benefits of Registering

Practically speaking, photographers in the U.K. and other countries may still wish to register their photos in the U.S., however.

The reason is that when a copyright is registered either before infringement or within three months of first publication, the photographer becomes entitled to statutory damages. This can significantly impact the viability of filing suit.

When you are not eligible for statutory damages, you may recover only “actual damages” for the infringement. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. You also may recover the profits the infringer made from the infringement, if they aren’t too speculative.

By contrast, when you are entitled to statutory damages, you may be awarded up to $150,000 per work for willful infringements. Legal fees and costs also may be recovered from the infringer.

Because lawyers and lawsuits are expensive, it rarely is worth filing a lawsuit when you are eligible only for actual damages. It dramatically increases the incentive to pursue an infringement when statutory damages are available.

If your photos are first published in the United States or in a country with which the U.S. has a copyright treaty, they may be registered with the U.S. Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the U.S., then you can register your photos with the U.S. Copyright Office.

In general, a photographer who desires copyright protection for his or her images in a particular country should first determine the extent of protection available to works of foreign authors in that country. If possible, this should be done before the work is published anywhere, because protection may depend on the facts existing at the time of first publication.

All unpublished photos, regardless of the nationality of the photographer, are protected in the United States. However, there are some countries that offer little or no copyright protection to any foreign works.

Check with an attorney to learn the best way to protect your work and to discuss your options when you are infringed.


]]> http://rising.blackstar.com/should-international-photographers-register-their-images-with-the-u-s-copyright-office.html/feed 11 http://rising.blackstar.com/of-street-photographers-spies-perverts-and-pedophiles.html http://rising.blackstar.com/of-street-photographers-spies-perverts-and-pedophiles.html#comments Mon, 30 Nov 2009 09:42:41 +0000 Michael Coyne http://rising.blackstar.com/?p=7922

“Beware of illegal photo taking. Report crime for benefit of all.”

These were the words on a sign at Causeway Bay, a bustling tourist area in Hong Kong. Such a warning isn’t unusual here; wherever you go, you can find signs reading, “No Photos, No Videos, No Smoking and No Dogs.”

There are approximately 60 million cameras being sold in the world each year. And yet, it is getting harder and harder to use them without being accused of being a spy, a pervert, or a pedophile.

The problem is not unique to Hong Kong. A quick Google search reveals numerous instances of photographers in the West being stopped from taking pictures in public areas. For example:

• Earlier this year, a London photographer was arrested under anti-terror laws for photographing a building near his home.
• A Greek photographer was arrested when a woman complained he was photographing her daughter on the subway. He apologized and erased the pictures — but the police still arrested him.
• An amateur photographer in the U.K. was handcuffed and arrested for photographing a policewoman.
• In Australia the local council tried to ban cameras from Bondi Beach, and school councils have banned cameras at children’s sporting events — claiming it would stop pedophiles.
• A photographer was prevented from taking pictures of an oil refinery in Colorado and told that it was forbidden after 9/11.

“You Can’t Take Pictures! Stop! Stop!”



Some time ago, I was making candid photographs on a Hong Kong street when a woman began verbally abusing me. She was convinced I was taking pictures of her infant.

“Madam,” I explained, “I don’t take baby photos.”

On another occasion, I knelt in a roadway to take photos of people who were walking in a crossing.

“You can’t take pictures from that angle,” warned my assistant. “You will be arrested and accused of trying to take pictures of women’s underwear.”

On yet another occasion, I was standing on a footbridge that spanned the main road through the center of Hong Kong. I was there to scout for a location and test the length of the lens I would need for an upcoming shoot.

Suddenly, I was surrounded by three guards.

“No photos!” one of them exclaimed as he planted a hand in front of my lens. Another guard stood in front of me in case I tried to do anything dangerous, as a third spoke rapidly into his phone.

My crime was that I had taken pictures of traffic and tourists crossing the main road through central Hong Kong.

It gets worse.

There is a famous building in Hong Kong that appears in every skyline photograph that is taken of the city. I needed to shoot a picture of the front of this building from the street.

No sooner had I pulled out my camera than a guard came rushing over waving his arms and calling out, “You can’t take pictures! Stop! Stop!”

The Best Camera for Spying?

Everywhere I go I see people pointing their phone cameras at everything and anything — but bring out a Digital SLR and the whole world goes into panic.

I can never work this out. Does it mean that spies only use a Nikon D3 with a large zoom lens? This would make them as obvious as a fly on the end of your nose. Blimey, if I were a spy I’d use a Nokia phone camera. No one would suspect you then.

One time I came upon three girls standing in the street dressed as fairies. I thought it would make a nice stock picture. I wasn’t alone in seeing the moment; so did 10 others who were shooting away with their phone cameras.

And yet, as soon as I put my DSLR up to my face, a guard came running over and yelled, “No pictures! No pictures!”

She then proceeded to jump up and down in front of me, trying to make it to difficult for me to take pictures of the girls. Unfortunately for her, she was a great deal shorter than me and didn’t quite get in front of the lens.

I did, however, miss the picture that I wanted most — a man dressed as a giant condom walking right past the fairies, unobstructed and undisturbed. He was being paid to promote Durex.



Easier in Iran?

You want to know what’s odd? Earlier this year, I worked in Iran. During my time there, I took pictures of babies, women, buildings and tourists.

And nobody accused me of being a spy, a pervert or a pedophile.

That’s right; it was easier to work in Iran, of all places, than in the tourist areas of Hong Kong.


]]> http://rising.blackstar.com/of-street-photographers-spies-perverts-and-pedophiles.html/feed 18 http://rising.blackstar.com/can-i-use-a-creative-commons-photo-without-a-model-release.html http://rising.blackstar.com/can-i-use-a-creative-commons-photo-without-a-model-release.html#comments Tue, 22 Sep 2009 13:39:13 +0000 Carolyn E. Wright http://rising.blackstar.com/?p=6269

Black Star Rising received the following question from a reader, Nick Arnold of MinistryAllies.com:

Am I at legal risk in the U.S. if I use a photo with a Creative Commons license where a recognizable face is in the photo and the photographer did not acquire a model release? This would not be for commercial use, just the cover of a free ebook.

Nick, it doesn’t matter how you get permission to use a photograph — whether from a Creative Commons license, a license from a stock agency, or if you shoot the photo yourself. In each instance, you must be concerned about an individual’s rights when you use or publish a photograph of that person. The rights you must honor when using or publishing a photograph of a person are known as the “rights of privacy.”

Four Kinds of Privacy Rights

Privacy rights can be subdivided into four areas. The first is “invasion of privacy” or “intrusion upon another’s seclusion.” This happens when someone actually enters a person’s private domain in a manner that would be considered offensive to the average person.

As a photographer, the act of going on someone’s land without permission would be trespassing and may violate their right of privacy. It is unlawful to view and photograph people inside of residences or other places where privacy is normally expected, even when the photographer is standing in a public place.

The second right of privacy is violated when private facts are publicly disclosed. This law is difficult to enforce; if the disclosed information is true, courts usually find that First Amendment (freedom of speech and the press) interests outweigh privacy rights. Violation of these privacy rights occur when an ordinary person would consider the information private and the disclosure offensive. Because of the required elements, photographers rarely run into trouble here.

The third right of privacy requires that you not portray a person in false light. This right can be violated when photographs are published, usually because of the caption. For a violation to occur, it requires that someone be publicly portrayed in a false manner that an ordinary person would find offensive.

To be liable, the publisher of the photograph must have known of or recklessly disregarded the probable falsity of what is represented. A violation here is similar to defamation when someone’s reputation is damaged by a statement that is known or should be known to be false. False light does not require that the person was damaged.

The Right of Publicity

The fourth right of privacy is an important concern for photographers and would be the right at issue in your question. It involves the commercial appropriation of someone’s name or likeness. This is also known as the right of publicity.

Violations of the right of publicity occur when someone uses the names or likenesses of others without their consent to gain some benefit. They usually occur when photographs of people are used in advertisements, endorsements, or trade (when the photos are incorporated into a product, such as on coffee mugs) without their permission.

This is why model releases are so important. They document that you have people’s permission to use their likenesses for specific purposes.

That said, when you use a person’s likeness editorially, rather than commercially, a model release is typically not required. This is because, in the case of the editorial use of photographs, a person’s rights are evaluated in light of constitutional interests.

So, what is the definition of an editorial use? Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms, not limiting it to the dissemination of news in the sense of current events. They have extended it well beyond that to include all types of factual, educational and historical data, even including entertainment and amusement and other interesting phases of human activity in general.

Better Safe Than Sorry

Specifically, the use of a photo of a person on the cover of a book generally has been deemed to be an editorial use. So in the instance of your free e-book, Nick, this may be the case also.

But that doesn’t mean you can use the photo without risk. Even when a photo is used editorially, the person in the photo can get upset. And the line between a commercial use and an editorial use can be a tricky one; you probably don’t want to leave it to a judge to decide. Moreover, the laws surrounding privacy vary from state to state.

The bottom line, Nick, is that your safest choice is to find an image without a recognizable face for your e-book cover — or to find an image that includes a model release.


]]> http://rising.blackstar.com/can-i-use-a-creative-commons-photo-without-a-model-release.html/feed 3 http://rising.blackstar.com/try-this-trick-to-avoid-model-releases.html http://rising.blackstar.com/try-this-trick-to-avoid-model-releases.html#comments Fri, 14 Aug 2009 12:18:57 +0000 Jeff Wignall http://rising.blackstar.com/?p=5639

If you’re thinking of selling, or even just displaying, the photos you take of other people, it’s a good idea to get the subject or subjects to sign a model release. Photographers and attorneys can debate when such a release is actually needed — but when I have recognizable faces in my images, I like to have a release just to be safe.

Unfortunately, sometimes it’s simply not practical, or even possible, to get my subjects to sign a release. So I have a trick I use in those situations: I make sure to take pictures where I can’t recognize the subjects’ faces.



When I’m out shooting in public places (like beaches), and I am too far away (as I was for the photo above) to get to the subjects in time to have them sign a release, I consciously look for moments when the subjects’ faces are turned away from me. I do the same in other situations where it’s difficult to get a release signed — such as a busy street in Manhattan.

Simplifying My Life

Does this choice rob me of some great shots? Of course it does.

But does it also simplify my life and provide good photos in situations where getting a release would be a major hassle or impossible? Definitely.

For the photo above, I watched a father and daughter gathering periwinkle shells at the beach for about 20 minutes. Unfortunately, I was a few hundred feet above them, on a rocky overlook. Finding my way down to them with my tripod and cameras would have been pretty dangerous.

So instead I watched them, waiting until they were just “generic humans” on the shore. I know this kind of trade-off isn’t always necessary — especially for editorial usage — but it makes my life easier.

The advice I give other photographers is to carry model releases with you, get them signed when you can, and get a phone number and address from your subjects. And if you can’t get them signed, make the subject unrecognizable.

That way, you never have to worry about which photos have a release and which don’t, and which uses are legally acceptable and which aren’t.


]]> http://rising.blackstar.com/try-this-trick-to-avoid-model-releases.html/feed 9 http://rising.blackstar.com/solutions.html http://rising.blackstar.com/solutions.html#comments Wed, 05 Aug 2009 11:43:38 +0000 Will Seberger http://rising.blackstar.com/?p=5151

In my last post, I discussed some of the challenges facing copyright law that are of concern to photographers. Since I’m not one to complain without offering suggestions, I thought I’d share some ideas on how we as photographers can better our situation.

Working Together

For starters, it’s going to be difficult for photographers to move the needle on copyright if we don’t work together. That means our professional organizations should play an important role.

They need to do more than hand out awards, sell products for third-party vendors and cash in on workshops. They need to initiate and support public initiatives to curtail copyright infringement.

While I don’t agree with all of the tactics of the MPAA and RIAA, their achievements have been impressive. The legislation they have pushed through Washington, and the aggressiveness of their approach to infringement, puts our industry to shame.

We need our organizations to stand up and be aggressive in this same way.

Strengthening Copyright Enforcement

What are some of the things photographers can do, working together, to reduce copyright infringement? Perhaps we can work with the U.S. Copyright Office to curtail accidental or “I didn’t know better” infringements.

Most copyright registrations for photography are made electronically these days. Why not have a system where you can search the Copyright Office’s database to identify copyrighted images? With the advent of technologies like TinEye, which allows visual search and comparison of digital images, one could imagine a system where an image could be checked against the Copyright Office database to determine whether it is under copyright.

It’s not a fool-proof solution, and it doesn’t protect photographers who don’t register their work — but it would be a start.

Influencing Google

Just as consumers have a tendency to trust doctors because of their white coats, they tend to trust large companies under the theory that they wouldn’t lead them astray of the law.

Google Images search and other applications make it really easy to find pictures. Unfortunately, Google Images search also makes it really easy to intentionally or unknowingly infringe on intellectual property.

Google does have a tiny notice on its image search indicating that results may be copyrighted. So what? ‘May be’ is a pretty flimsy phrase.

Google protects its code. Its entire business is built on the IP that allows it to sell gobs and gobs of ads. In the same way, my entire business is based on IP that allows me to control the use of my product, thereby monetizing it.

Google has an understanding of and respect for its own IP. What about ours?

Perhaps we can help convince Google to add an interstitial page or overlay in image search results. A plain-language notice indicating that users are free to view image search results — but probably not free to use them beyond looking — would be a big step in the right direction.

Google could even make money on this by selling ads for legitimate stock agencies, or even legitimate freebie sites, in association with these notices.

Can we browbeat them to listen to our concerns — if we band together?

An Easier Way to Seek Compensation

It can take forever for a copyright case to get to federal court. It can also be very expensive for the rights holder to take it there.

And while a clear-cut case with registered artwork makes it easier to find an attorney willing to take the case on contingency, it doesn’t necessarily speed up the process. Most photographers figure it’s not worth the hassle.

I’m not a copyright attorney, but I wonder if it would be possible to set up an “infringement hotline” where infringements can be pursued outside of the courts — either by the government or non-government groups. The fines could fund the initiative as well as compensate photographers.

New Protections Are Needed

Progress is progress. But just as the speed and weight of cars made roads more dangerous after the horse and buggy era, so does the speed and power of the Internet pose threats in addition to offering benefits.

As nearly all copyrighted work touches the Internet at some point, some new systems and tools for enforcement must be put in place to protect those who make their livings in intellectual property.

We can’t do our job as photographers if it doesn’t keep a roof over our heads, and our bills paid.


]]> http://rising.blackstar.com/solutions.html/feed 7 http://rising.blackstar.com/is-a-verbal-agreement-sufficient-for-a-model-release.html http://rising.blackstar.com/is-a-verbal-agreement-sufficient-for-a-model-release.html#comments Mon, 13 Jul 2009 10:36:39 +0000 Carolyn E. Wright http://rising.blackstar.com/?p=5153

Black Star Rising received the following question from a photographer identifying himself as Baron V. –

I recently received a nasty e-mail from a model I shot about seven years ago.  We had a verbal agreement to do the shoot, with the understanding that I would use the photos for various purposes, including as art for a magazine article about me and in my online portfolio.

No fees were charged for portraiture, nor was the model paid any fees.  It was a classic swap — photographer’s time and materials, model gets access to prints for personal use.  At the time, the model even requested a copy of the magazine article and posed for me for other projects.

The e-mail in question demanded that I take all photos of the model in my online portfolio down immediately.  The model threatened to pursue other avenues if I did not comply.

I obliged her request, but since then have been having second thoughts.  If I knew I were on firm legal grounds, I would like to keep her images in my portfolio.

What should I do?

The violation of the right of publicity (also known as “misappropriation,” one of the rights of privacy) is, in simple terms, the unauthorized appropriation of someone’s name or likeness. 

In some states, the claim can include the unlawful use of a person’s voice, signature, image, distinctive appearance, gestures and/or mannerisms. The claim belongs to the person in the photo. Violations occur when someone uses the name or likeness of another without the person’s consent, usually for advertisements, endorsements or trade.

That is why model releases are so important. They document that you have people’s permission to use their likeness. 

A Personal Injury Tort

The violation of a person’s right of publicity is a personal injury tort. Since the right of publicity is a state right, rather than being based on federal law, the particulars of the right vary by state. In 19 states, the right of publicity is established by the state’s legislature by statute; you can view the statutes here.

In 28 other states, the right is established under common law, created by the state’s courts. The remaining states do not currently recognize this right.

The applicable state law is usually where the photo was published and/or the person injured. Some states only recognize the right for celebrities or public persons. In those states, however, the violation may be an intrusion into the person’s seclusion.

The U.S. Supreme Court has addressed the right of publicity only in one case:  Zacchini v. Scripps-Howard Broadcasting Co. 433 U.S. 562 (1977).  There, the Court held that a television station violated a performer’s right of publicity by showing the performer’s 15-second human cannonball act in its entirety on its news broadcast, effectively robbing the performer of his economic interest in his act.

Of course, the First Amendment of the U.S. Constitution (“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble and to petition the government for a redress of grievances”) allows for some uses of a person’s name or likeness, such as for newsworthy purposes.

Such “editorial uses” do not need the model’s consent. But since most uses are not clearly editorial, it’s always safest to get a release.

Written vs. Oral

Some states specifically require that the consent for the use of a person’s likeness (a model release) be in writing. But an e-mail exchange can comprise the writing; it’s a judgment call that depends on the circumstances.

For the states that don’t require written consent, it boils down to whether you can prove that the oral consent was given. Were there witnesses to the agreement? Do you have any other proof that you had a deal with the model?

Ultimately, the most important question for you may be whether your continued use of photos of this model is worth the fight.


]]> http://rising.blackstar.com/is-a-verbal-agreement-sufficient-for-a-model-release.html/feed 5 http://rising.blackstar.com/can-look-but-dont-touch-ever-be-enforced-on-the-web.html http://rising.blackstar.com/can-look-but-dont-touch-ever-be-enforced-on-the-web.html#comments Wed, 08 Jul 2009 16:29:04 +0000 Will Seberger http://rising.blackstar.com/?p=4911

How effective is a law that is unenforced? How effective is a law when the public has no clear concept of its meaning and spirit?

Unfortunately, that is the current state of copyright law. I would argue that the entire concept of copyright is in peril, with the threats coming from multiple directions.

In the Beginning

Many people don’t realize that our founding fathers cared enough about copyright protections to include them in our Constitution. Article 1, Section 8, Clause 8 gives Congress the power to enact laws

to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Copyright allows the creator of intellectual property to control its use by others, and thereby monetize its scarcity. The profits encourage the creator, as well as others, to make more intellectual property.

And because copyrights expire, all intellectual property eventually enters the public domain for the enrichment of America’s cultural heritage. Everybody wins.

It sounds like a pretty solid system to me. But the digital age is threatening to blow it to bits.

Copyright? Screw the Man

The problem starts with ignorance and misconceptions regarding the law and what it’s designed to protect.

Denizens of the Web are quick to associate copyright law and enforcement with Hollywood and the recording industry. They see it as a way for the rich to get richer.

They despise the RIAA for going after children and grandmothers for illegally downloading a few songs from a file-sharing service. The harsh tactics have created a backlash. Stealing IP is a way of sticking it to The Man.

All of the back and forth and bad feelings have somehow led a lot of people to the conclusion that no artist — rich, poor, famous or otherwise — has any right to make a living on their IP.

And that’s for the small percentage who have an opinion on copyright law. Most folks on the Web are simply ignorant of it, or find it too confusing to worry about.

Shades of Gray

Just last month, Sonia Zjawinski of The New York Times, a company dealing almost exclusively in the creation and licensing/sale of IP, wrote in a blog post that downloading and printing pictures from Flickr is a great way to decorate your home.

Her column generated a small avalanche of protest from photographers, and so she followed up her post with another, in which she included quotes from lawyers, said copyright law provided little clarity on the issue, and left us with the conclusion that the law had “lots of gray areas.”

From my perspective, photographers who put pictures on Flickr with copyright notices that reserve all rights to their work have clear intentions. They want you to ask for permission to use their work.

That means you can look, but not touch. If you want “look plus touch,” you can choose one of the many photos on Flickr licensed under Creative Commons.

That seems pretty clear to me.

Unfortunately, Sonia found a lawyer to muddle things up for us, arguing that it is OK to use “all rights reserved” photos to decorate your home as well:

[Stanford law professor] Anthony Falzone pointed to the 1984 Supreme Court decision in Sony Corporation of America v. Universal City Studios, which said that it was legal to use a VCR to record copyrighted content from broadcast television for personal viewing.

“There are a lot of parallels with what’s going on with Flickr,” Mr. Falzone said. “People are posting photographs and know very well that they are going to be viewed by people on a computer, and if someone wants to print a photo out that they see on Flickr to enjoy some other time and in some other place, that seems fairly analogous to what people did with the VCR.”

From that legal angle, if someone decides to download an “All rights reserved” image from Flickr and put it on their PC desktop or print it at home, they should be covered under fair use.

With such “gray areas,” it’s no wonder that copyright controversies extend beyond our living room wall art.

Fair to Me

Companies and individuals ranging from small blogs to major electronic publishers have made a habit of grabbing pictures and graphics from wherever they can to illustrate whatever they want.

Is it illegal or infringing every time? No. But too much of it is.

“Fair use” has become a catch-all defense, but most people who use it have no idea what it means. (Here’s a good overview of fair use.)

Some people think that as long as the use seems “fair” to them, it’s fair use. I often hear people defend using images on their blogs by saying, “I’m not making money doing it.”

Well, that might sound “fair” to you, but that has nothing to do with fair use.

Whether or not you make money by using someone else’s IP, it’s possible you have diminished the creator’s ability to make money from his or her work. In other words, an enforceable infringement.

Enabling Ignorance

I once had a realtor grab a photo off my Web site, use it on his blog and tell me it was OK because he put a ©Will Seberger under it.

From our conversation, I realized that he simply had no idea how the law works. He promptly took down the image without any further argument.

But this is obviously not a battle that can be won on a conversation by conversation basis.

Especially when software like OffiSync is on the market. OffiSync is designed to facilitate interplay between Microsoft Office and the Google cloud. As such, it has a built-in Google Images search box, presumably to help users find and use Google Images in documents, spreadsheets and presentations.

If OffiSync lets you do it, it must be legal, right? Why would they let you do it if you aren’t supposed to?

What to Do?

I’m afraid I don’t have any easy answers for photographers wishing to protect their work.

I could tell you to remove your photographs from sites that are generally accepted (incorrectly or otherwise) to be clearinghouses for free photos.

I could tell you to place a warning on your site (they work so well with cigarettes), watermarks, metadata, .htaccess redirects and right-click blocking. I could tell you to only upload low-resolution versions of your images.

At the end of the day, the best of these solutions are merely duct-tape fixes for a structural problem.

It would be nice to think we could simply pull the plug on our Web servers and make the problem go away. But these days, I need the Web to create visibility for my photography business — and I’m guessing that you do, too.

So where do we go from here?


]]> http://rising.blackstar.com/can-look-but-dont-touch-ever-be-enforced-on-the-web.html/feed 17 http://rising.blackstar.com/can-your-company-blog-claim-fair-use.html http://rising.blackstar.com/can-your-company-blog-claim-fair-use.html#comments Fri, 19 Jun 2009 11:09:21 +0000 Carolyn E. Wright http://rising.blackstar.com/?p=4470

These days, it can be difficult to distinguish between a commercial Web site and an editorial Web site, as more companies add blogs to attract visitors. This has led to questions about the use of photography, such as -–

I have a blog on the Web site of my commercial business, in which we report on topics of interest in my industry. Do I get the same “fair use” and “freedom of the press” protections in using photography on my blog as a newspaper or magazine would, even though the primary purpose of my blog is to drive traffic to my Web site to grow my business?

The safest route for any blog, regardless of whether it is a commercial blog or editorial blog, is to only incorporate material, including photography, that you own or that you have explicit permission to use. 

“Fair use” is the exception in copyright law for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research when using copyrighted materials without permission from the copyright owner.  While this is often associated with the news media, “freedom of the press” does not mean that news organizations may use copyrighted materials without restriction. 

Neither is fair use limited to only editorial purposes.  Instead, a commercial Web site’s use of copyrighted material may fall under fair use if it meets certain requirements.  It’s just usually more difficult to meet those standards when used for commercial purposes.
 
Further, a photographer who believes you have infringed his copyright may be more likely to make a claim against you, as a corporate entity, than, say, a lone blogger in a basement somewhere. Let’s face it: you’re easier to track down — and more likely to have deep pockets.

Fair Use and Photography

Standing behind the defense of “fair use” always carries risk, because only a court of law can determine whether a use of a photograph without the permission of the photographer/copyright owner is fair. Understanding what makes a use “fair” may help you evaluate whether you should take the risk.

Copyright law attempts to balance public interest and the rights of authors/artists, so that artists will be encouraged to create and the public will benefit from this.  The classic example is the quotation from a book being reviewed.  Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal.  If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair. 

Fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But it has its limits.  In determining whether a use is fair, the court is required by the Copyright Act to consider -–
 

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

An unauthorized use will more likely be considered a fair use if a small amount of the entire work has been used.  While such a use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.

Simply grabbing a digital image from the Web to illustrate a blog post is unlikely to be considered fair use. When the unauthorized use directly competes with the copyright owner’s business or potential for income — such as, to sell usage of his photos to corporations like yours — a court will usually find that the use was not a fair use. 

Editorial vs. Commercial Use

In addition to the question of fair use, you also face the issue of “editorial use” vs. “commercial use” as it applies to the people in the photographs you publish on your blog. 

When a photo is used for editorial purposes, it is not necessary to obtain the permission of the person in the photograph. However, the person has a “right of publicity,” which prevents you from using their photograph for commercial purposes without their permission. Permission is generally documented by a model release.

So, how do you tell the difference in the uses?

Editorial use of a photograph is found in a newsworthy item. In those cases, the person’s right in the use of his image must be evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment interest and is broadly construed.

Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms. It is not limited to dissemination of news in the sense of current events, but extends far beyond that to include all types of factual, educational and historical data, or even entertainment and amusement, concerning interesting phases of human activity in general.

Commercial use of a photograph usually occurs when the picture of the person has been used for advertising, endorsement, and/or trade purposes. While the photograph of a person may be used for something that is sold for profit, such as in a book or a print, that is not the test for a commercial use.  Instead, if someone looking at a photograph would think that the person in it is promoting or endorsing a commercial product affiliated with the photograph, then the use is commercial.

Since it sometimes is difficult to know if the use will be considered commercial or editorial, it’s always safer to get the model release. Photographers who license their photos for commercial use generally attain model releases at the time of the shoot.

The Best Course: Don’t Take Chances

The bigger question is, why would your company take chances with fair use and editorial/commercial use when there are so many safer options?

Why not simply ask the photographer for permission? Or buy images from a stock photography Web site or a microstock site like iStockPhoto, where images cost as little as $1? Or — if you’re looking for free images — how about searching the Creative Commons Web site?

Grabbing images for your company blog without making sure you have the right to use them simply opens you up to unnecessary risk. You should expect to pay others for their work, just as you expect to be paid for yours.


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