Is your Internship Illegal?

You need an internship. Companies love having interns because it lightens the work load, they get to nurture and identify young talent and it supports the industry to train future photographers.

Tea pickin' is probably not eligible for unpaid internships. Photo by Alicia Wagner Calzada

There is an interesting article in the New York Times about the expanding trend of unpaid internships and the reality that some unpaid internships violate federal wage laws.

I also found a useful evaluation at this link.

One of the big concerns is that unpaid internships are being used to replace paid workers in this economic recession. This is certainly true in the photojournalism world.

Some states require that an intern receive school credit in order to be eligible as an unpaid intern.

The Department of Labor has provided a set of guidelines to determine whether someone is a trainee, entitled to not being paid (this is relevant for Fair Labor Standards Act- i.e., whether or not minimum wage laws are being violated).

There is also a report by the Economic Policy Insitute on the trends and need for reform for internships.

According to the DOL, there are six factors used for determining if someone is an employee or trainee:

1. The training, even though it includes actual operation of the facilities of the
employer, is similar to what would be given in a vocational school or academic
educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close
observation;
4. The employer that provides the training derives no immediate advantage from the
activities of the trainees, and on occasion the employer’s operations may actually
be impeded;
5. The trainees are not necessarily entitled to a job at the conclusion of the training
period; and
6. The employer and the trainees understand that the trainees are not entitled to
wages for the time spent in training.

“If all of the factors listed above are met, then the worker is a “trainee”, an employment
relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker.”

This does not affect non-profits using volunteers.

You may think this is overkill when you have a student willing to work for free in exchange for valuable experience, but this is extra important for photographers because the consideration of whether someone is an employee is also important for consideration of who owns the copyright. Also if there is an on-the-job injury or a sexual discrimination case, employment status is extremely important.

Being specific- and the definition of “public relations use”

I don’t know if I have mentioned it before, but a contract can’t conceivably have all of the possible terms available in the universe (although some try). So if a term is missing from a contract, or if it is ambiguous, the court will try to fill in the blanks. In other words, the court will interpret any part of your contract that is unclear. For that reason, you should be clear about the important parts- like usage.

In my research, I came upon a  case which is a good example of how clear usage terms can make all the difference in a lawsuit. The case is Steve Altman Photography v. United States, 18 Cl. Ct. 267 (Cl. Ct. 1989)

Basically what happened was that the photographer and his client, a government agency, had an ongoing relationship and a subsequent dispute over a couple of different uses. Two parts of the case interested me. The photographer claimed that the agency violated his copyright twice, once by releasing an image to a magazine and again by using a (separate) photo in an annual report. Both allegations combine to make a good lesson.

“PR Use” and Release to a Magazine

I simply hate pages with lots of text and no photos. So here. Enjoy. © 2008 Alicia Wagner Calzada

For the first allegation, the photographer had granted “public relations use” for an assignment. The agency gave a copy of a photo from the assignment to a magazine. Was the copyright violated?

First, the court, without more specific indications of the intentions of the parties (at the time of the contract), interpreted “public relations” based on the dictionary definition:

“”Public relations” refers to the “business of inducing the public to have understanding for and goodwill toward an . . . . institution.” Webster’s New Collegiate Dictionary, 932 (1975).” Id.

Second, because the photographer came up with the terms, the court construed the contract most favorably to the other party- basically, as the person drafting the terms, you have a responsibility to be clear, and you don’t get to benefit from being vague. Thus the court found that releasing the photos to the magazine fell under “public relations” use.

More Specific Usage Terms– “1982 annual report”

In the same case the same photographer had also licensed some photos for an annual report, specifically “to be used in 1982 annual report and for P.R. release.”

Because these terms were more specific, when the agency use the images in the annual report for a different year (1983), the court ruled that there was a copyright infringement.

So you see how being specific made all of the difference. Imagine if the client had used one of the photos from the first instance in an annual report. The court could have used the second contract as proof that annual report use was not included in public relations use. Or it could have decided that the absence of a specific limitation meant that there was no limitation.

Moral of the story, be specific, lest someone else is left to read your mind. After all, if you end up having a judge interpret your contract, you have lost the client.

If you use a general license, list the possible uses. If you need help filling in the blanks, a great resource is PLUS (Picture Licensing Universal System). They have an awesome feature called the “License Generator” which you can use to fill in the usage section of your contract. Try It!

Happy Shooting.

-A

Shepard Fairey Drama Twist

Sometimes a lawsuit is just a lawsuit.

But sometimes it is a soap opera. Sometimes, a lawsuit is an attempt to shape the laws, an attempt to get the public to wake up and take sides. And sometimes there is a cliff hanging twist and turn every time you think it is safe to turn off the internet. Fairey v. Associated Press, is all of the above, and the case has all of the elements of a good drama (except sex): politics, money, theft, lies, and art.

In the latest twist, Fairey has admitted that he falsified evidence and attempted to destroy other evidence. AP has also issued a statement, stating that the Fairey’s lawyers are attempting to withdraw from representation of Fairey. To them, I say: “what did you expect from a thief.”

Bad news for the copyleft- their “poster-child” for fair use has almost certainly ruined his case. There is nothing like lying to the court and violating discovery to remove all sympathy a judge might have for your case. Furthermore, he could be sanctioned to the point that he looses his primary defense. No matter what happens, he looks very guilty.

On Another Note:

When researching this news, I noticed an interesting article from the EFF that explains how as a part of the countersuit, the AP is also making a claim under the Digital Millenium Copyright Act for stripping the metadata from the photograph (see item 137 and 182 of the counterclaim document). I was not aware of this, but this will be another interesting element of the case to follow closely if this does not settle. Removing metadata is a violation of the DMCA. And yet nearly every newspaper website in America removes metadata from photos that it publishes. I have long criticized this practice- it creates orphans. But if AP wins on the issue of removing the metadata, media lawyers will have to wake up about the practices of news organizations relating to preserving metadata.

On Yet Another Note:

As I mentioned, this case has many twists and turns. Few legal posts I have seen evaluate the Mannie Garcia claim that he is the rightful copyright holder of the photograph. Here is one great article about it, though.

I have chart on work for hire that I created earlier this year. Without knowing more facts about Garcia and his arrangement with AP, it is hard to work through it, but you might find it useful.

Interesting Related Documents:

Fairey’s Initial Complaint

AP’s Answer and Countersuit

Fairey’s motion to amend the claim (with the details about Shepard Fairey’s change in story)

Mannie Garcia’s Motion for intervention.

More documents from the case.

Wedding photography disaster- protect yourself

This story about a wedding photographer in England who was sued for providing “shoddy” photography holds a few lessons, for both photographers and brides to be. For brides, do your homework and get a decent, and professional photographer. These photos, and the video as well, make me wonder if the couple looked at any examples of the photographer’s work before they hired him. Was this just a bad day? I can’t imagine.

For photographers, the lesson is that an important element of your contract is a determination of what happens if something goes wrong.  Disasters happen. Car accidents and family emergencies happen. Even good equipment, on rare occasion, fails. My contract, regardless of the client, has a limitation of liability that says if something does go wrong, my liability is only the amount paid to me. I guarantee my work, but I am not willing to foot the bill for a second wedding if someone doesn’t like my style. To have such a guarantee would force me to raise my prices significantly.

This is important, not because I expect my client to be unhappy- on the contrary, I have very happy clients. But photography is subjective. For example, the judge in the above article found that the photography was bad based in part on the fact that some heads were cut off, and some horizons were crooked. Some photos were out of focus. From a stylistic perspective, you might have award-winning images with heads cut off, crooked horizons and soft focus.

This brings up another point. I don’t know whether the photographer in the above case gave all his images to the bride, or only a selection, but as a rule, I ALWAYS provided only an edited selection. I learned the hard way to never provide my entire take to someone who is not a photography professional. Doing so is an invitation to be judged by your outtakes, which by definition, stink.

You could certainly take my worst outtakes from any event I have photographed, haul me before a judge, and get a judgment that I am a bad photographer. But that will never happen, because my job is not to make every frame I shoot perfect. My job is to to provide a selection of wonderful, unique images. That is what the client wants, and that is what the client gets.

SEC credential restrictions improved

The SEC has once again changed its credentialing policies for this season. This time it appears to be a much better change. According to the SEC, the new policy has “additional flexibility in internet news coverage, uses of photographic images, access to video images for television newscasts and special shows and clarification in the provisions of blogging”

The new policy can be found at this link:

http://www.secsports.com/doc_lib/0910_media_credential_policy.pdf

There is also a good article on editor and publisher website, clarifying the restrictions that were lifted:

http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1004007242

Finally, it is worth reading this general article by the Associated Press Sports Editors group: “Here’s what you need to know about credential issues”

Also worth reading for freelance photographers is this post by John Harrington about the lesson that photographers can learn from the AP, who refused to give up its rights. The irony is painful. And yes, the rights are clearly valuable.

Magazines on Google

“A Photo Editor” blogger Rob Haggart reports that Rodale, which is a magazine publisher,  is publishing back issues of the magazine on Google. They are available through Google Book Search. Here is a post about it on Google as well.

Haggart brings up the amusing point of what to do with magazines that basically write the same articles every month.

But he also brings up the question of whether the magazine is violating copyright a/la New York Times v. Tasini, which ruled that publishers did not have a right to relicense content to database without the contributor’s consent. (If in fact this is an arrangement between the publishers and google, and not an independent act by google)

Google Book search- includes magazines now

My opinion (as a student of the law, not as a judge or lawyer) is that this is permissible, based on the Tasini opinion, which by coincidence, we read last week in my copyright course.

The big difference between Google magazines and Tasini is that Tasini involved a large database where the articles could appear along with completely unrelated articles or alone. They didn’t appear in context, and so they didn’t qualify as permissible revisions.

In the current situation, the articles and photographs appear in context and I think they would be considered permissible revisions. Which is not to say that Google can post them without the magazine’s consent, but only that the magazines can authorize Google to post them without the photographer’s consent.

From Tasini:

“A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only “as part of” any (or all) of three categories of collective works:

(a) “that collective work” to which the author contributed her work,

(b) “any revision of that collective work,” or

(c) “any later collective work in the same series.”

In accord with Congress’ prescription, a “publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.” H. R. Rep. 122-123″

I think if a photographer took this case to court, it would look more like Greenberg v. National Geographic. In that case, a court ruled in favor of the publisher’s right to republish a digital “revision” of the magazine without permission of the photographer. The magazine pages on the CD ROMs in the NGS case were presented in their original context, whereas the Tasini articles in the Lexis and other databases were not. Seems like a small difference, but it makes all the difference.

A good way to distinguish the two is to think about the good old microfilm days. If it looks like microfilm (you have to look at the entire page in context) then it is more like the Greenberg case. The Google Magazine search looks more like microfilm.

Keep in mind that each case has the potential to be different based on the facts, and a contractual agreement between a magazine and a photographer may change the equation. Also, if this is not an arrangement with the publishers, but is instead google going out on it’s own, it is a different kind of trouble.

Ironically, this google magazine search could be a major blow to Lexis Nexis. Why pay LN fees to search magazines when you can do it for free on Google.

Reminder: this should not be considered legal advice. See disclaimer.

Bankrupt Tribune Co. paying freelancers and stringers

Despite its bankruptcy filing on Dec. 8, 2008, Tribune Company appears to be paying freelancers and stringers for work done during the bankruptcy period (before Dec. 8). A memo on the Tribune bankruptcy website states that payments should arrive in mid-January. Some payments have already gone through.

In a memo on it’s bankruptcy website, Tribune wrote,

“After a careful review of the outstanding invoices submitted by the freelancers/stringers at Tribune’s business units, the company has determined that it will be possible to begin paying these individuals for work done prior to Dec. 8, 2008.”

According to the memo, payments have a statutory limit of $10,950 per individual.

Work completed on or after December 8, 2008, is not affected by the bankruptcy filing and should be paid as normal, according to Tribune.

We have confirmed that some pre-petition invoices have already been paid.

Photographers with questions should check with the publication with which they have done the work for. Those who still have not been paid by the end of the month should file a Proof of Claim Form, available at this link:
http://chapter11.epiqsystems.com/documents.aspx?pk=7d2b7379-c031-4bdd-b0b1-9977bd9b8091

A creditors meeting is being held on January 16, 2009 at 10:00 a.m., at J. Caleb Boggs Federal Building, 844 King Street, Room 5209, Wilmington, Delaware 19801

More information on the Tribune bankruptcy, including the memo about freelancers can be found at:

http://chapter11.epiqsystems.com/tribune

Bankruptcy and Copyright

Seeing as how one of my clients has filed for bankruptcy, I plan to be researching the issue of bankruptcy more and more.

It is a dense issue. Here is something I have found

Although the bankrupt company’s assets can be re-distributed, intellectual property is different in that the IP rights cannot be assigned to another party unless the IP owner has consented, according to In The Red business bankruptcy blog, (to make the information in this link more understandable, replace the word licensor with photographer and licensee with client/newspaper/magazine):

Also, this discussion on Patry Copyright blog about bankruptcy and patent. (be sure to read the follow-up comments)

Definitely this is complicated. My guess is that this will develop more over the next few years.

As an aside, I think this means we need to watch out for terms in our contracts that would allow IP rights to be assigned to a third party in bankruptcy.

Deconstructing a Bad Contract

After taking two semester of Contract Law in law school, I feel much more confident negotiating contracts with publishers and other clients. But perhaps you don’t have that kind of time.

Luckily for you, ASMP has a great new feature it just added. It is basically a look at a really bad contract, an explanation of what the legalese really means, and suggestions for alternatives.

Be sure to wave your cursor over the highlighted areas, to take advantage of the pop-ups.

Some confusing terms that are explained: royalty-free, in perpetuity, sublicensable, pre-agreement, exclusivity, liability, indemnification, embargo.

This is a great educational tool for photographers. I highly recommend taking a look at it.

Learning what these clauses means helps you to recognize them and make good decisions about whether you can live with them. Furthermore, having alternative suggestions for your clients eases the negotiation process.

Just don’t get too depressed. ;o)

DRR … steps to take now.

If you are a member of Digital Railroad, you are probably scrambling to deal with their shut down.

Photographers rushed to get their images before the shut-down. But what about the money you have spent in advance (say you paid 12 months in advance to secure a discount)?

Eleven out of 12 account members who pay annually (perhaps it is really 364 out of 365), have paid for a service that they will not be getting.

It is time to consider what rights you have here.

This situation frankly leaves me with more questions than answers as I don’t know much about liquidating a company, but I see some answers in contract law concepts. Most of this discussion is academic, since if they are truly broke, you don’t have much hope of getting the money back.

I see a few options:

• First, you can ask for a refund. Maybe you will get one. You will probably have to go through these people: Digital Railroad, Inc, c/o Diablo Management Group, 1452 N. Vasco Road, #301, Livermore, CA 94551 (I would do this sooner rather than later- they will run out of money eventually)

• You can try suing for your money back. Now is the time to contact your attorney to get advice on if you might have a chance at getting some of your money back. Certainly, the creditors will be beating down their doors, and if this ends in bankruptcy, you will be at the end of a very long line (if you have any rights at all). On the flip side, if they have been bought by another company, that company might have responsibility to pay DRR debts (your attorney should know). You will have to sue in New York Court.

• If you signed up within the last month, you might want to call your bank or credit card company and ask them if it is possible to refute the charge. Tell them that DRR has stated that they will not be providing the service that you bought.

Finally, since the website went down, so did your ability to access those terms and conditions that will guide a court in determining if you get your money back. Hopefully you kept a copy for yourself when you signed up. If you didn’t, email me. I copied the Terms and Conditions from today and will send you what I have. They were updated in August.

A couple of things that are important elements of the current terms and conditions:

• under the agreement, the law of New York apply, and any suits must be filed in New York. Lucky if you live in NY. Not so lucky if you live in Hawaii. Not so lucky either for the management company that is based in California.
• Under the agreement, their liability is limited to the amount of money that you have paid to them. (don’t try to charge them your day rate for the trouble of downloading your archive)
• Don’t expect to get anything at all from a company who has no money (although we don’t really know if they are completely broke or not)

Final notes:

• You should sign up with another service provider and migrate your workflow as quickly as possible. You don’t want the failure of DRR to cost you business.
• You should evaluate all of your other business relationships. For any vendor that you have, for any business that you rely on- ask yourself where you would be if they went under. This includes your website provider, your email system, your print fulfillment service, even your cell phone company… every service that is critical to your connection with customers. You should have a back-up plan for each of these. The economy is bad, and DRR is just one of many companies that will fail.
• For that matter, look at your client base. If your main client goes out of business, where will you turn to pick up new business. Have a plan.

Reminder. This should not be considered legal advice. For that you should consult an attorney, not a blog. As a law student, I don’t have experience or expertise in bankruptcy law, and do not practice law. This blog merely raises issues and discusses them from the perspective of the author.