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.

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.

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)

Contract Drafting tips

The ABA e-newsletter has an interesting article about contract drafting. Even though as a photographer you probably aren’t drafting your own contract, you should be aware of the concepts of contract drafting and differing views on it.

The perspective of this author is a wise one. A couple of things he says that ring true to me: “much litigation has its roots in defective drafting” and, “you should use standard English.” He talks about useless phrases that are part of contract legacy, but are completely useless.

Note what he says about indemnification clauses. He writes that using the phrase, “indemnify and hold harmless” is bad drafting language because “hold harmless” is vague. A better choice of words: “indemnify against all losses and liabilities”

An important point for all photographers to remember- fancy language doesn’t make it a good contract. Clear language that can be clearly interpreted makes it a good contract. That doesn’t mean that you can’t use big words or complicated concepts, but don’t hide behind what you think is legalese and expect that will make the contract more effective.

Think about this. One of the goals of having the agreement in writing is so that the agreement is clear. Any person, confused about their responsibilities under a contract can refer to the contract and get the answer.  When a contract is not clear, the parties do not understand their responsibilities. Two people might even interpret the same phrase differently. Your worst case scenario is that a judge will have to sort out the difference in opinion.

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

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.

Contract basics- an exchange

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.

Law is Phun!

So a while back, I was researching copyright cases, and I read a footnote about how one case would now be on the judge’s list of amusing case names. I thought that was an interesting comment. Here it is…

Easter Seal Soc. for Crippled Children & Adults, Inc. v. Playboy Enterprises,

815 F.2d 323 (5th Cir. La. 1987)

(the judge called this case name “delightful” and referred to the other two that follow in subsequent posts)

– Okay, I know you are dying to know… what possible beef could the crippled children have with good ol’ Hugh? Well basically, according to the case, Easter Seals worked with a PBS station to get footage of a staged mardi gras parade for a telethon.

That PBS station later responded to a request from a producer in Canada seeking mardi gras footage. The station was unaware of the end user for the footage, but it was bought by a producer for a… movie.

Unhappy that their parade was now in a film called “Candy the Stripper,” showing on the Playboy Channel, Easter Seals sued Playboy in federal court for copyright violation. But the court ruled that since the Easter Seals was not the author of the video, they had no standing for a copyright suit.

The videographer was not an employee of Easter Seals, he was an employee of the station, so Easter Seals did not own the copyright, the station did. Thus they could not sue. Summary judgment for the defendant was upheld (case dismissed).

This is a great case because it goes into great detail about the concept of work-for-hire; the definition of employee; how courts have evolved in determining whether a commissioned work is a work-for-hire with a copyright transfer over the years; and how the Copyright Act of 1976 took that evolution and put it into statute, partially adopting and partially modifying case law of the time. It addresses some of the ambiguity of the work-for-hire doctrine.

If you really want to read an in-depth evaluation of the work-for-hire doctrine, this case is a great place to start. I simply don’t want to make this post any longer, but this case is a great read. (and thanks to Circuit Judge Gee, for pointing out the other cases U.S. v. Satan, and Mrs. Moffat’s Powder for Drunkenness)

If you have comments on this case, please post them.