The copyright office has a sense of humor…

While much of the copyright office seems to be serious business, and even sometimes scary, I found this funny nugget in the FAQs

Q: “How do I protect my sighting of Elvis?

Answer: “Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. Just send it to us with a Form VA application and the filing fee. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph. .”

Yeah… I’ve got a better idea… Just send ME the photo.

Contract basics- Damages

When a contract is breached, there are consequences, generally called damages.

How you write your contract can greatly affect how those consequences affect you. But first, you need to understand the types of damages.

A court will generally take one of three approaches to a breach of contract case, all aimed at providing relief for the non-breaching party (the person who did not break their promise).

1. Expectation Damages– to put the non-breaching party in the position it would be if the other party had fulfilled it’s obligation.
2. Reliance Damages– to put the non-breaching party in the position it was in if the contract had never been made- generally reimburses costs from relying on the fact that the contract was in place.
3. Restitution Damages– restores to the party, benefits conferred on the other.

Applied to photography contracts, this might look like the following:

If a photographer provides photos and the client doesn’t pay:

• Expectation damages would be the money the photographer expected to earn (easy enough).
• Reliance damages would be the money the photographer spent on expenses to take the photo (probably not a good choice in this scenario).
• Restitution damages would be the return of the photos (but if they are already published, this is also not a good option)

If a client hires a photographer and the photographer doesn’t follow through:

• Expectation damages might include the cost of hiring another photographer to do the work. If Photographer 1 who breached the contract, was replaced by a more expensive photographer, Photog 1 wouldn’t be liable for the entire cost of Photographer 2, but rather the difference in the cost between the two. Occasionally, on the People’s Court, a wily bride will try to claim expectation damages that includes the entire cost of restaging the wedding because she doesn’t like the photos. That is usually not allowed (but would fall under expectation damages).
• Reliance damages. If a shoot was canceled because of the photographers breach, reliance damages might include any costs related to setting up of the shoot that couldn’t be recovered, such as location fees, talent, travel of the art director, you name it. In an advertising shoot, this could really add up.
• Restitution damages would simply be the amount paid, including expenses and other benefits, to the photographer until the cancellation.

This is an overview, so there are other factors involved. For example, the non-breaching party would have to attempt to mitigate the damages before getting anything. This is called mitigation of damages. In addition, terms that you write into your contract can limit the damages available. This is called remedy limitations (or if it is a specific amount, liquidated damages). But such limitations have to be reasonable.

I have never had to cancel a photo shoot or had a client reject my work. But things happen, accidents happen, people get sick. And photography is subjective. One clients’s “great job” might be another client’s “this is horrible.”

So in order to prevent the possibility of high expectation or reliance damages, I have written a limitation of damages clause into my contract.

It says this:

“The liability of Photographer in relation to any assignment, in any event, shall be limited to the refund of total fee paid to her for the assignment in question.”

Keep in mind that a breach of contract, on either side, is never meant to be a windfall. In fact, courts specifically try to keep it from becoming that. So you can almost never get emotional damages or punitive damages for a breach of contract, unless it is accompanied by a tort like fraud or negligence. You can only get reimbursed for what you lost. Thus it is always best to settle your differences outside of court.

Photography in National Parks- a local look

With my attention focused on the national discussion of photography permits in the national parks, I thought I would check on my local national park. I have done photo shoots at the San Jose Mission National Park many times, for both editorial shoots and for individual clients.

What I found was proof that there are major contradictions out there and a definite need for the national system to give more specific recommendations.

Here is what is listed at the San Antonio Missions National Historical Park website (new policy effective in 2006). Instead of having one straightforward policy, there are four different policies stated that contradict each other and might each be interpreted by a park ranger in their own way:

First, on the FAQs page:

“I want to use the missions as backdrops in my family and wedding photographs. What do I need to know?

• “If you or a family member is taking pictures, there is nothing special you need to do… If you are using a professional or commercial photographer, you or the photographer must apply for a permit at least 14 days in advance. There will be a fee involved.”

Ummm…. Aaack!!!

But then, clicking on the more information button and the “commercial filming” link:

“Commercial filming includes capturing a moving image on film and video as well as sound recordings.

Still photographers require a permit when

1. the activity takes place at location(s) where or when members of the public are generally not allowed; or
2. the activity uses model(s), sets(s), or prop(s) that are not a part of the location’s natural or cultural resources or administrative facilities; or
3. Park would incur additional administrative costs to monitor the activity.”

(this is more in line with what we at the NPPA have been saying. Any permit should be based on the level of interference, not what the photographer will later do with the image.)

But if you read further on down the same page, you see this lovely chart …..

Commercial Filming/Videos		Still Photography
1 – 2 people, camera & tripod only	$0/day
1 – 10 people	$150/day	1 – 10 people	$50/day
11 – 30 people	$250/day	11 – 30 people	$150/day
31 – 49 people	$500/day	Over 30 people	$250/day
Over 50 people	$750/day

If I was a ranger, I would see the column on the right and assume that a photographer with 1-10 people was responsible for paying $50.

Finally, further down the page, the link to Appendix 13,exh.1: still photography pulls up a document that says:
“The NPS will not require a permit for photographers, commercial or non-commercial, to go anywhere or to do anything that members of the public are generally allowed to go or do without a permit. This is true whether or not the photographer uses tripods, strobe lights, or interchangeable lenses. Coverage of breaking news never requires a permit but is subject to restrictions and conditions necessary to protect park resources, public health and safety, and to prevent impairment or derogation of park resources, values or purposes.”

“A permit is required if the superintendent determines there is a potential of a photography project’s harming or having an impact on the park’s natural, cultural or recreational resources, or creating unacceptable health or safety risks, or disrupting visitor use and enjoyment. A permit is also required pursuant to 36 CFR 5.5(b) for persons taking photographs of vehicles, other articles of commerce or involves the use of a model, set or prop for the purpose of commercial advertising.”

This is a fine policy. I just wish I got there sooner.

-A

Cell phone laws, by state and country

In celebration of my new international cell phone and since photographers are always on the road, and always on the phone, I thought it would be useful to share this nugget which is a chart of all countries that ban driving while on the cell and also has a state-by-state list of cell phone laws.

http://www.cellular-news.com/car_bans/

By the way, I am a guilty as the next guy but we all know it is true. When you see someone driving like crazy, they are often on their cell phone.

Phun update

My friend Rebecca said my blog was too serious. So in honor of summer playfulness, I wanted to remind everyone about my “Law is Phun” section. Some of the fun thing you might find:

• why the Crippled Children sued Playboy and why they lost
• why Satan can’t be sued (it’s all about jurisdiction)
• what happens if you take Mrs. Moffat’s Shoo Fly Powders for Drunkenness
• what happens if you abuse photoshop or simply put it in the wrong hands