Contract basics- an exchange

30 06 2008

While we are all subject to the laws of our city, state, and country, contracts are kind of like laws that two or more people have agreed to create to govern their relationship. You only have to follow the rules if you choose to enter the contract, but then you are bound by law.

More specifically, a contract is an exchange of one or more promises. So it is a promise, but it is also an exchange. For example, a photographer promises to take a photo and let a client use it, and in exchange, the client promises to pay the photographer a certain price.

Seems obvious, but it does have implications. If there is no exchange, there is no contract. If the promise was not voluntary there is no contract (this gets you off the hook if a gun is held to your head, but doesn’t cover the mere fact that the other party has the upper hand).

A contract also has to have something called consideration, an important term. Consideration is that thing that you are exchanging. Both people have to have traded something for a contract to be in place. Otherwise it is a gift. So if client agrees to pay and photographer agrees to shoot, that is an exchange. If photographer agrees to shoot for free (or client wants to give away some money), there is no contract. A one-sided promise can’t be enforced. The benefit of agreeing to shoot for free, is that if you change your mind, you haven’t really broken a contract (there are some exceptions, but that is for another day). They can’t make you shoot for free. Oh yippee!

This also has implications because consideration has to be something that you weren’t already obligated to do. For example, if you promise to abstain from drinking until you are 21, in exchange for college tuition, you might not actually have an enforceable contract. You already had a legal obligation to abstain from drinking until you are 21. So you have not really given anything up.

What do you mean, “one or more promises?”

A contract can still only consist of one promise because sometimes a contract is accepted at the same time it is created. More on offer and acceptance later, but basically if I offer to pay you if you walk my dog, and you walk my dog, you are accepting my offer (and putting the contract into play) at the same time that you are performing your side of the bargain

So imagine this scenario:

  • You (a photographer) get a call for a last minute assignment.
  • You say you aren’t sure, but you will try to make it.
  • Client says: okay, well if you can go great, if not, fine.
  • You haven’t made a contract yet. If you don’t go, you have not broken the contract.
  • But if you go, you have done two things. You have made a contract and you have performed your part

Let me know if this is interesting, or if I should stick to the Floo Powder posts.


SLAPP meets Photography

26 06 2008

So, now we know what a SLAPP suit is, and what anti-SLAPP is. You may wonder… What does it have to do with photography?

There are a couple of cases where SLAPP was used as intimidation against photographers:

California Coastal Records Project: In a classic Free Speech vs. Right to Privacy case, when environmentalist and photographer, Kenneth Adelman, posted aerial photographs of the California Coastline, he ended up with a photo of Babara Streisand’s house in the collection, available on the internet. She filed an invasion of privacy suit. Adelman filed an anti-SLAPP motion. It was granted and she was forced to pay over $150,000 in his legal fees.

Ironically, before the lawsuit, the image had only been downloaded a few times. Now the very photo that she was trying to keep away from public eye has been seen in connection with the dozens and dozens of articles posted on the case, and the blossoming environmental group attained global recognition, and more positive publicity than legions of PR agencies could ever get them. This is now called the “Streisand Effect.”

Copyright SLAPP: Photographer Chris Gregerson filed a copyright infringement suit against a local business who violated his copyright and the infringers attempted to bury him in countersuits with charges such as libel, defamation and misappropriation. His SLAPP motion to strike was denied. He eventually won his case, but after 2 years of legal wrangling. He documents the saga on his website here.

Here is a case where SLAPP was alleged, but it wasn’t really so and the motion to strike was denied.

Sports Illustrated/ Invasion of Privacy: In 1999, Sports Illustrated ran a story about child molesters in little league baseball. They included in the story a photo of a team whose manager had plead guilty to molesting five children that he had coached. Some of the children in the photo sued SI parent corp, Time Warner. Time Warner filed an anti-SLAPP motion to strike. It was denied and upheld on appeal.

One of the elements of a SLAPP suit is that it is unlikely to succeed. The reason this anti-SLAPP motion to strike was denied was these plaintiffs had a case that was reasonably likely to succeed if all the allegations were true. They had demonstrated a prima facie case of invasion of privacy. Anti-SLAPP is designed to curb meritless lawsuits, not to prohibit bona fide claims.

Text messages, some emails, are private (at least on the West Coast)

25 06 2008

The Ninth Circuit has ruled that even if your cell phone is owned and the plan is paid for by your employer, that employer cannot read your text messages. The court ruled that an Ontario police department violated an officers right to privacy when they obtained his text messages from the cell phone company to see if he had been writing personal text messages. They also ruled that if a company outsources its email service (no company server), that email is private as well.

This, despite the fact that the department had a policy clearly stating that employees should have no expectation of privacy and that the text messages and emails might be monitored. The kicker- despite that policy, they told the officer that if he paid the overage fess, his texts would not be audited. This created a reasonable expectation of privacy. If they had told him that in subsequent months they were going to audit the content of the messages, that might have been all right. The key- he had a reasonable expectation of privacy, and the search was unreasonable.

Clearly he did expect privacy- he had been writing sexually explicit messages to his wife.

Remember, that this is the 9th Circuit. This may lead to a different result in the 5th Circuit. But the Ninth Circuit, having jurisdiction over silicon valley, has a lot of experience with adjudicating tech cases

Source, Quon v. Arch Wireless Operating Co.

It’s like shooting fish in a platter…

23 06 2008

Just when you thought it was the easiest assignment you get. I just read that some New York restaurants are developing policies on whether photography is allowed, or banned in their restaurant. Apparently it is a response to the foodie bloggers.

Who knew? The main concern seems to be flash photography and the interruption that it causes to other diners.

I shoot food all the time, but usually by appointment. One time, the reporter forgot to get an appointment and so we just showed up and ordered a meal- she would review and I would shoot at the same time. Problem was, we were having such a good time, and the food looked so good, we just started eating it. Then we realized what we were doing and had to patch it back together for the photo. That is why for me, work is work, and lunch is lunch.

The best time to shoot food photos is 2pm. The cooks are still there, but the busy lunch time is over.

The legal issues are this: a restaurant is private property so they do have the liberty to limit certain activity (although after the photos are taken, they have no control). There have been occasional concerns about copyright in the artistic expression of food, but I think that is a questionable claim for your average meal. Some chefs have been known to claim that their food sculpture is copyrighted, but a picture accompanying a review of that food would likely fall under fair use. There have been instances of recipe plagiarism, but a mere listing of ingredients is not protected by copyright (although substantial literary expression in the form of an explanation or directions can be). This seems to be more of an ethical issue currently.

I think it will be a while before this anxiety of banning photography of restaurant dishes hits the fabulous restaurants of San Antonio.

Wow. $12 million copyright infringement case

23 06 2008

Photo copyright award– Photo Attorney Carolyn E. Wright writes about a recent copyright infringement case that awarded the photographer $12 million in damages. It’s quite a tale, check it out. The case is Ordonez-Dawes v. Turnkey Props., Inc., 2008 U.S. Dist. LEXIS 24320 if you want to read it.

Here is a portion of the judgment:

1. Plaintiff is entitled to an award of actual damages and infringer’s profits, pursuant to 17 U.S.C. � 504(b), of $ 12,089,260.00. This amount consists of $ 58,760.00 in actual damages and $ 12,030,500.00 in lost profits.

Quick poll. Do you think the losers in this case will

  • a) sue their attorney for malpractice,
  • b) file for bankruptcy, close their company and open a new one,
  • c) try to appeal, or
  • d) flunk their Civ Pro class

In other copyright news, AP and bloggers are in dispute over the limits of fair use of quotes and links and AP is reportedly releasing guidelines soon about what it considers appropriate fair use. Bloggers, are of course, up in arms, but they probably don’t know what it is like to be laid off because the company that is paying you to create content is no longer the company that is profiting from that content.

While brief quotes and links seem to fall into fair use, there is an abundance of bloggers whose entire posts are someone else’s content, or who post entire articles and even photos and then try to claim that it is fair use. Rather than launch an army of lawyers, I recommend that bloggers simply paraphrase, and do a little of their own reporting. It will take less time.

Visions of Victory

21 06 2008

Local District Court Judge Bert Richardson (who loves photography) is interviewed in this piece about a new sports photography exhibit at the San Antonio Museum of Art, called Visions of Victory.

I am always surprised at the number of lawyers and legal professionals who are also photographers or fans of photography.

Charges dropped against photographer

20 06 2008

In another “bully the photographer” case…

A good friend of mine, Tony Overman (a respected and experienced journalists who has testified before Congress on behalf of the profession), was arrested while covering a fire scene recently. Basically, he got into a verbal argument with a police officer. The officer got in his face, their noses touched. The officer accused Tony of assaulting him, pushed him to the ground, arrested him, and twisted his arm. Tony’s wrist was sprained. He was charged with assaulting a police officer- basically for talking back.

Fortunately, Tony knew exactly how to handle this, from years of advocating for other photographers. He has a media lawyer on his speed dial.

The evidence in this case spoke for itself. None of the other police officers or firefighters on the scene saw the alleged assault. The officer also had no reported injuries, despite his claim that Tony hit him in the nose with his forehead.

The charges were dropped yesterday.

I have been thinking about something lately. I have been wondering if there is any other profession where the professionals risk arrest for doing their job every day. I can’t think of one, other than journalist (and maybe drug dealer)

I am relieved that the charges against Tony were dropped, but in general, I am so sad about this reality…

• Story in The Olympian •• NPPA Story •