Three years ago, we noticed a clause in Facebook’s terms and conditions that worried us. The clause appeared to grant Facebook the right to create derivative works out of members’ images, to license members’ photos and even to transfer the rights it claims over those pictures to others. We alerted Bert Krages, a legal expert who specializes in the laws relating to photography, and he confirmed our suspicions. Facebook’s terms did indeed allow the social media site to do pretty much anything it wanted with the pictures uploaded to the site. In fact, Krages told us, the clause was written in such a way that Facebook could even build a stock library out of its members’ contributions if it wanted. That was three years ago. Things have changed and  Facebook has updated its terms. That clause though, and the rights it grants to Facebook, remain.

Facebook isn’t the only site to place its hand on the intellectual property owned by its users. TwitPic’s recent kerfuffle over copyright ended in a muddle with the photo-sharing service declaring clearly that users “retain all ownership rights to Content uploaded to Twitpic.” But echoing Facebook’s rights grab, the terms then go on to state that:

“by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.”

Other publishers who wish to use content posted on Twitpic “for any commercial purpose or for distribution… whether online, in print publication, television, or any other format,” are informed that they must obtain permission from and provide credit to… Twitpic. It’s as though the photographer — the same person that Twitpic has said owns the copyright — just doesn’t exist.

What’s Yours is Yours

Twitter, at least, was a little smarter. When the microblogging company announced that it would allow the incorporation of images into tweets using Photobucket’s servers, it made clear that Twitter’s users owned those photos. As company representative Sean Garrett put it in response to someone who had wondered whether Twitter would claim the right to sell their photos:

“You own your tweets and photos will be part of your tweets.”

When it was pointed out that Photobucket’s terms aren’t quite so clear and, like Facebook and Twitpic, allow the site a broad freedom to republish users’ images, Garrett repeated that as far as Twitter is concerned, users’ property remains users’ property.

“I work for Twitter and am telling you how we will apply rights for photos (that happen to be hosted by Photobucket).”

None of this is to say that Facebook, Twitpic and Photobucket have a secret plan to steal and resell their members’ photos. Facebook might have the legal right to set up a stock library but in the three years since we noticed that clause in its terms and conditions, it hasn’t done so and doesn’t appear to be planning to. Passing on user images might not be restricted by law but it is likely to result in a mass removal of content from the site, a more powerful penalty than anything a court would impose. The aim of the rights that social media sites claim over user images then is more likely to be the freedom to advertise their services and promote themselves. It’s their heavy-fisted approach, which gives them more rights than they need, that’s the problem.

Or rather, it’s one problem because although photo-sharing sites might be greedy with rights they don’t plan to use, at least they’re consistent in their approach to user content. That can’t be said of publishers.

When event planner Stefanie Gordon snapped a shot of the space shuttle Endeavour taking off during a flight over Florida recently, her image and video went viral. According to Mashable, some news organizations contacted her and asked if they could use her footage. She agreed, provided they gave her credit. CNN and NBC both did. The Washington Post and The St. Petersburg Times went further, paying Gordon $100 for each image they used. The Associated Press paid $500 plus royalties. But ABC News and CBS both used her video without any credit at all.

It’s possible that a court decision will now put an end to the worst of those abuses: the treatment of user images as a free resource. Photographer Daniel Morel had sued a number of news organizations that reprinted images he had taken of the aftermath of the Haiti earthquake. The pictures had been copied by Lisandro Suerto of the Dominican Republic who had sold them as his own to Agence France-Presse, Newsweek and other news agencies. The court dismissed Agence France-Presse’s argument that Morel had lost copyright exclusivity by sharing the images through Twitter, informing publishers that tweeted images are not fair game.

Twitter Should Copy Flickr’s Licensing Program

So there are two problems: on the one hand photo-sharing sites are claiming more rights than they need or want in poorly-written terms that spook contributors; on the other hand, publishers want to publish user images but are unclear about the rules that govern usage of images placed on the Web by members of the public who may or may not be willing to see them published. The best solution may be to adapt the way that Flickr sells stock licenses to social media’s editorial photos.

Flickr’s partnership with Getty allows publishers to license users’ images through the stock company. Once users have opted in, they don’t need to do any more than collect the royalties, while publishers are clear about Getty’s usage rules and payment terms. It’s not a great deal for photographers, who only receive 20 percent of the sales price and are probably better off selling their images themselves, but it is simple and clear for both sides.

Twitter (and Twitpic) could do something similar. Users could opt in to a licensing program, perhaps managed by a news agency, that allows publishers to reprint their images for a fee. News organizations that need to move fast would be able to get crowdsourced images quickly and from a source they know. Contributors could be sure that they’re getting the credit and payments they deserve. It’s not difficult to implement and the model already exists. All it would take is the will of Facebook, Twitter and their friends to put the program together and give photographers what they deserve.

Photography: Kevin Sommers

For photographers, the ownership of images seems obvious: they had the concept, set up the shots, used their creativity, drew on their technical skills, and produced beautiful photographs. The results belong to the artists who created them, and they’re the ones who should get to control how the photos are used. For clients, that attitude can come as a surprise. If they’re hiring a portrait photographer or an event photographer to take pictures of them or their wedding, then they should own the pictures. After all, there wouldn’t be any images if they hadn’t approached the photographer, and they are paying plenty of money for them to be created too.

Copyright law sides with the photographer, but that conflict between who should own the images and what the client wants do with them is often a source of tension between photographers and the people who commission them. When those clients aren’t professional image buyers but occasional users, the result tends to be a lot of small-scale copyright breaches. Wedding clients print out the images on their DVDs, email photos to friends, and make copies of the DVD to share with family. On that scale, photographers tolerate it. The smart ones even encourage it, using the sharing as a form of viral marketing, especially on Facebook.

Ignoring Usage Restrictions

But some clients take things a little further. People who need portraits taken for professional reasons — such as to advance a singing career — may either be unaware of the usage restrictions placed on their images, or they may simply choose to ignore them, passing out their headshots and publicity photos to anyone who needs them regardless of the small print in the photography contracts, and any fees that are supposed to be paid for each use.

It’s a problem that has led one photographer to redefine the usage license of the images he produces. Kevin Sommers is a former lawyer married to a retired copyright attorney. After spending several years at a large corporate law firm then running his own law firm, he found that he missed the creativity he had enjoyed in a previous job as a commercial advertising photographer for Caterpillar. He turned his 100-year-old law office building in Nashville into a studio and set himself up as a professional photographer specializing in portraits, model portfolios, music promotion work and headshots.

Like other photographers, Kevin requires clients to sign a form declaring that he retains copyright ownership of his images. Clients, however, are then granted a limited release to copy, post and distribute the images for personal and self-promotional use. The license doesn’t apply to third parties but it does give clients the flexibility to print modeling comp cards, headshots and other marketing material without returning to the studio for a release. It’s a solution, Kevin explains, that’s convenient for both sides.

“They often need to provide an image quickly when a newspaper, magazine or agency needs an image and I do not want to hold them up in case I am not available right then,” says Kevin of his clients. “I travel several months of the year and this is the most practical for everyone involved.”

Singer Beau Davidson, for example, has submitted Kevin’s images to InTouch Magazine, The Tennessean, Cosmopolitan and other media outlets. Kevin receives a credit but Beau Davidson doesn’t have to contact Kevin before each use — and he doesn’t have to pay an extra fee for each publication or pass the bill on to the magazine.

But it’s not just the convenience of not forcing clients to wait for him to issue a release that has led Kevin Sommers to waive fees for those usages. There’s also the inevitability that the pictures would be used anyway.

“I also realize that since they get their images from me in CD or DVD form, they may be used even without the release,” he explains.

Don’t Sue If You Can’t Collect

To some photographers, that may sound like an expression of defeat. A photographer’s biggest asset is the collection of images that he or she builds up over a career. Allowing clients to use those photographs without additional payments, and worse, not chasing down illegitimate use may lower the value of those assets and encourage even more copyright abuse.

To Kevin though, it’s about practicality. As a lawyer, he points out that legal cases can be costly, lengthy and emotionally draining. Each photographer, he says, has to decide on a case-by-case basis whether a copyright infringement is serious enough to pursue. Because his clients are mostly young singers, taking their first steps in the music industry, he says, he has little to gain by taking them to court.

“Winning a judgment does not mean much if you cannot collect it,” notes Kevin. “That should be the first thing they teach in law school.”

But changing usage licenses to acknowledge that clients will use the images the way they want anyway is only one aspect of the change that Kevin Sommers’ contract brings to photography. It also marks a change in one aspect of the photography business model. Photographers may earn most of their income during the time it takes them to shoot and edit the pictures, but the profits for printing images over which they retain reproduction rights can provide valuable extra income. In an atmosphere of intense competition, that’s a benefit that’s quick to disappear. Clients aren’t dumb, says Kevin, they know when they are being overcharged for “print packages” that give them more than they need or want. Letting portrait clients, for example, print as they want saves them money and makes his offers more competitive.

More importantly, Kevin, who usually charges between $300 and $575 for a shoot, sees his job not as a printer but as a photographer. He wants to let the client worry about what to do with the pictures while he focuses almost entirely on creating the shot.

“I… personally do not enjoy the tedium of filling print orders,” he explains. “I am in the business of taking portraits, not selling prints at outrageous rates.”

Kevin acknowledges that his model isn’t going to suit every photographer and every photography business. But it does suit him. The question is how many other photographers find that it’s a solution that suits them too — and whether it will relieve the tension between photographers and the clients who commission them to create pictures.

It might look like a small detail compared to the challenge of framing the image and adjusting the lighting but for photographers looking to cash in on their images, the lack of a model release is a major limitation when it comes to making sales. It’s one of the most common reasons — together with duplication and trademark infringements — that stock companies reject images, and it’s also one of the hardest elements for photographers to deal with. If you know you’re going to be shooting with the idea of selling for stock you can hire models or ask your subjects to sign on the dotted line but when you’re hoping to sell pictures shot a long time ago and whose subject is long gone, usage will always be restricted to illustrating editorial pieces, and the value of the image will be lower. One solution is to shoot — and offer — the kinds of pictures that don’t require model releases.

When Elizabeth Popadopoulos joined Flickr in March 2008 she had only a Canon Powershot, iPhoto and, she says, time on her hands. She began uploading images, found the feedback from other members addictive and, realizing that digital photography allows her to shoot as much as she wants without wasting film and with no extra expense, continued taking pictures. She’s since upgraded her equipment (at least a little), completed a number of photography classes, but more importantly, she’s shot 40,000 photos. Despite her lack of experience, Getty approached her a year ago and invited her to add a number of her images to its Flickr collection. She sold eleven licenses in the first month and has gone on to make a total of 143 sales.

No Model Releases Keeps Things Simple

Part of Elizabeth’s success is down to the quality of her photography but much has to do with her creativity and a fortunate detail about the subject of her images. Elizabeth shoots mostly artistic abstracts, rich in line, color and detail. They could be close-ups of feathers, shots of hot air balloons, or even patterns made from colored post-it notes. But what they all have in common is that the images are sellable and none of them requires model releases.

“Model releases are not an issue for my photos,” says Elizabeth. That’s great for me because it’s another way of keeping things simple (and less work).”

Photos like these also carry another benefit: they’re artistic enough to serve as fine prints, an area that Elizabeth is promoting as well. That’s unusual. The kinds of pictures that buyers usually want to use tend to be more deliberately commercial. If they don’t include shots of business people in suits, they’re likely to show happy families walking in a park or receptionists talking on the telephone — all images that would require model releases.

Following Elizabeth’s approach to shooting sellable (and artistic) image doesn’t have to mean lining up pieces of colored paper or getting close to a peacock’s feather. It’s also possible to separate the elements from her work and focus on color or form alone. Paul Marotta’s photo of buttons, for example, goes for form; Martin Pickard’s picture of traditional sweets goes for both. Each of those kinds of images is artistic enough to be rewarding for the photographer to shoot and commercial enough to be offered for sale. And they don’t need model releases.

All of those pictures involve getting close to the subject. It’s also possible though to step back. While certain buildings can require property releases — you can sell photos of the Eiffel Tower shot in daylight but the lighting company owns the copyright to the way the tower appears at night — you should usually be on safe ground if you’re hoping to offer photos of landscapes and cityscapes. Just packing the camera as you stroll the city then may be enough to land you a spot on Getty although you might have more fun creating shots that demand a little more artistry.

That’s fine if you’re the kind of photographer that’s happy to shoot the environment or make pictures out of buttons. But what if you’re a people photographer at heart? Are there still easy ways to enjoy yourself shooting photos of faces and offer them for sale without having to chase down the subject of the image first for a model release?

Self-Portraits Deliver Easy Model Releases

There’s you, of course. Self-portraits are a particular kind of photograph but they’ve allowed Icelandic Flickr member Rebekka Gudsleifdottir, among others, to build a career, and stock sites offer them too. Ignore the cheesy stuff in which photographers shoot the topic rather than the style and look to the genuine article for examples of what you can create when you’re willing to put yourself in front of the lens — and supply your own model release. Sometimes it’s even possible to create a self-portrait that lets the photographer maintain a secret identity and which requires no release at all. Shooting someone from a distance or in a way that makes them unidentifiable can do that too.

And if all that fails, there are always the old favorites. Think ahead and make sure the people you photograph are prepared to let you use their image either because they want to or because you’ve bribed them with a CD-load of free images for their own use. Or stick to offering images of friends and relations who are easy to find and unlikely to refuse. But whichever approach you take to beat the model release challenge, it also pays to be flexible. As Elizabeth Popadopoulos put it:

“Remember, nothing is forever in the market. Needs and tastes change. No one can tell me if my images will be selling in a year or two, or at what price points. So keep your eyes open and always consider your options.”

And if all else fails, get the model release first.

Taxes are a nightmare at the best of times. There’s the form-filling, the receipt-keeping, the revenue-calculating and finally, the check-writing. That always hurts. And there’s very little escape from it. Even part-time photographers have to do the tax thing and hand over large chunks of their sales to the IRS – at least, they’re supposed to. Some photographers though have found that the tax authorities can be particularly mean, landing them with some unexpected bills of eye-watering sizes – and for some very odd reasons.

Sports photographer Eugene Amos, for example, has reason to feel particularly aggrieved. On January 15, 1997, he was photographing an NBA basketball game between the Chicago Bulls and the Minnesota Timberwolves when Dennis Rodman fell off the court and landed on him. Amos received minor injuries but these were compounded when Rodman kicked him in the groin, say representatives at the Risk Law Firm.

The two sides reached a settlement in which Rodman agreed to pay Amos $200,000 in compensation.

The IRS Lands a Second Blow

And that was when the tax authorities gave Amos a second kick. The IRS sent him a note of deficiency, informing him that only one dollar of Rodman’s payment was for his injuries and therefore tax-free. The remainder was taxable damages.

The Tax Court took a more generous view, allowing Amos to deduct $120,000 of the payment from his gross income as compensation for his injuries but claiming that the remaining $80,000 was in return for the confidentiality clauses that were included in the agreement. As part of the deal, Amos had agreed not to defame Rodman, disclose the terms or existence of the agreement, publicize facts relating to the incident, or assist in a criminal prosecution against Rodman in relation to the kicking he was said to have delivered. The details were revealed in the court ruling, effectively negating their apparent $80,000 value.

The IRS is believed to actively search for large damage awards, and issues its field agents with special guidelines regarding lawsuit awards and settlements. That’s something to bear in mind next time you’re agreeing a figure with a celebrity who’s just bounced your camera off your head.

Leibovitz Pawns Her Images to Pay the Taxman

If Amos might feel he was hard done by, he could at least count himself lucky to hold $120,000 in return for being squashed by a pile of tattoos. Annie Leibovitz, however, has much more reason to feel bitter. When her partner Susan Sontag died in 2004, Leibovitz, Vanity Fair’s in-house photographer, inherited her estate. Had the couple been legally married, points out Queerty, the inheritance would have brought no tax liabilities at all. Because they weren’t married though, Leibovitz is faced with paying up to 50 percent of the value of an estate that had once belonged to an internationally-renowned author, film-maker and intellectual.

It’s a bill that comes at a particularly bad time for Leibovitz. Renovations on her three adjoining townhouses in Greenwich Village have turned out to be more expensive than she anticipated. She recently paid off a lien placed by federal and state authorities in response to tax demands of more than $1.4 million, and a lighting company and stylist are suing her for more than $700,000.

The financial difficulties are so tight in fact that last fall, Leibovitz borrowed $5 million from lenders Art Capital Group. A few months later, she was back with a request for $10.5 million more. Her collateral included the townhouses, a country house… and the rights to all her pictures.

It’s nice to know you’ve got valuable photos, but it’s nicer still if you can keep them out of the hands of the pawnbrokers.

Do Photographer Services Require a Sales Tax?

Eugene Amos’s problem was relatively rare. It’s not every day that a celebrity with lots of money and an image problem mistakes a photographer for a soccer ball. The size of Annie Leibovitz’s tax and debt issues are worries for millionaire photographers. But the tax code is so complicated that even small photographers can easily slip through the net and get picked up by the tax authorities. That’s especially true when it comes to sales tax.

When Ted West, a photographer in Oklahoma, was audited for the period between March 1, 1992 and February 28, 1995, the tax authorities discovered that he did not have a sales tax permit for his photography business. He paid sales tax when he bought supplies, rented equipment or developed film but he didn’t collect sales tax from customers that included advertising agencies and commercial clients.

West argued that the demand for sales tax was wrong because even though he gave the completed film to the clients and didn’t even retain copyright over the images, his transactions were for services rather than tangible personal property. He also claimed that his relationship with his clients was that of employer/employee – a definition even few photographers would want to support. That meant the client always owned the photographs and he didn’t need to pay sales tax for what was effectively a salary.

The court, perhaps not surprisingly, didn’t agree. He was ordered to pay 4.5 percent of the gross receipts of each sale for the three years covered in the audit.

West’s case was relatively straightforward. If you hand over pictures to a client and they pay you for it, you’ve made a sale and have to collect the sales tax. Fail to do that and the IRS will come round with a big bill. But what happens when no images change hands?

In April 2009, the North Carolina Court of Appeals heard an appeal lodged by the state’s Secretary of Revenue against a decision made in favor of Carolina Photography Inc., a photography firm that photographs high school students. In June 2002, The company was audited for the period between March 1, 1999 and January 31, 2002, and ordered to pay sales tax for “retouching fees,” “copyright fees” and “sitting fees” that were levied before an order was placed.

But while every student that sat for a picture paid a sitting fee, only 70 percent bought an image. Carolina Photography paid the sales tax for all the fees then asked the court for a refund for the 30 percent of sitting fees that didn’t produce a sale. The Trial Court agreed to the refund. The Appeals Court saw things differently. It assessed that the sitting fee was part of the sales price – in effect, it was a labor fee to fabricate the printed photographs – and therefore needed sales tax. It overturned the Trial Court’s decision.

It would be nice to say that there’s a moral here, that the tax laws are straightforward as long you sign the checks, collect the sales tax and pay the bill. But if there is any conclusion you can draw from this, it’s that you’ll always end up paying taxes, it will always hurt — and it’s worth listening to a professional tax advisor.

Just how bad is online image theft?

If the results recorded by PicScout, a technology company tracking images across the Web for clients that include Jupiter Images, Getty and Corbis, are to be believed, the situation is very bad indeed. An incredible nine out of ten of the photos that its Image Tracker program finds on websites, and which belong to its customers, are being used without permission and without payment.

“Ninety percent of the images we find have been stolen,” Karen Shemesh, PicScout’s marketing communications manager confirmed in a phone call to the company’s Israel headquarters. “That’s true for photos on commercial sites as well as those on private sites.”

PicScout, which was formed just five years ago and whose customers already include some of the world’s biggest stock companies and hundreds of individual photographers, uses special technology to create a “fingerprint” from photos uploaded to its site. Crawlers then scan the Web looking for images that match that fingerprint.

The match is confirmed by PicScout’s QA team and customers receive a report indicating when, where and how the image has been used. They are even given a screenshot and the offending company’s contact details. The system can recognize images that have been cropped, colored or Photoshopped and, according to Karen, the results are 100 percent accurate.

We Sue for You
What happens after the report has been received depends on the rights owner and on the image’s user. Photographers or stock agencies with their own lawyers can contact the website’s owner directly to demand compensation. But photographers can also use PicScout’s network of law firms and collection agencies in North America, the UK and Germany. While that might be easier — and less risky — than hiring your own legal advisor, PicScout will retain half the funds collected. Some of those funds will cover the legal fees, while 10 percent of the amount recovered will be donated to a photography industry organization.

PicScout’s compliance team only chases commercial sites however, presumably because it finds that pursuing small-time webmasters is too much work for too little reward. Interestingly though, the company’s definition of a “commercial” site is broad enough to capture almost everyone:

“If the site makes money… if they have ads or any financial income, they’re commercial,” Karen declared.

In theory then, a site that swipes an image owned by Getty and uses it on Web page alongside an AdSense unit, could find itself receiving a letter from a firm like Russo & Burke.

In practice though, that’s more likely to happen to sites that have large traffic flows, and not all of PicScout’s customers are keen on dragging a few dollars out of even a commercial user. Many of the offending publishers are unaware that they’ve infringed copyright, we were told, and some are happy to become regular buyers once informed.

“It’s not about suing sites. It’s about notifying them,” Karen said. “Everyone uses ImageTracker differently. Some are looking to see that no one is using their images, some for protection, and some to gain new customers. If someone has used an image from a stock company or a photographer, they might be interested in buying from them in the future.”

Get your Free Stock Images Here!
For image users who really don’t want to pay though, PicScout has now produced a new product — and this is likely to be much more controversial. PicApp lets publishers use images owned by stock sites for free, in return for placing a targeted ad — whose revenues go to the stock company — alongside the photo. The type of images available have recently been extended to include editorial photographs, including shots of celebrities.

The aim of PicApp is clearly to allow the photography industry — or at least stock sites — to recoup some of the money lost when a blogger, for example, places an image on his site without paying for it. But if those bloggers aren’t being chased by lawyers then the only motivation they might have for using PicApp’s photos is that the photos might not have already appeared on someone else’s website. They can still find stock-quality images on Google and the fact that PicApp’s products are legal might not be a great draw.

The question then is whether the presence of an ad that provides no benefits to the publisher would put them off stealing images — and perhaps more importantly, what effect giving away photos worth hundreds of dollars in return for advertising revenue will have on the industry.

It is possible that stock companies have finally discovered a revenue model for image users with the very smallest budgets. But it’s also possible of course, that publishers will simply steal the images and delete the ads.

Take a look at PicScout’s services for individual photographers here, and tell us what you think.

[tags] PicScout, PicApp [/tags]

It might be flattering. It could even make you proud… at least for a minute or two. But finding that one of your images has been copied and pasted onto someone else’s website without your permission is always infuriating.

That’s especially true when that site is generating income.

The fact that it’s not easy to discover when someone has been copying your photos doesn’t make it any better. Without an attribution, Web searches for your name won’t turn up results for stolen photos, and Google Alerts aren’t capable of reporting image use either.

Most Copying Sites are Commercial
That could be about to change though. Attributor is a new system that aims to track content across the Internet so that creators can discover who’s stolen their work — and help them to do something about it. Although the system is currently being used by AP and Reuters to follow text, the company has now launched a Beta version that allows publishers to find their images too. (The Beta will open to individual photographers in the next few months.)

“[O]ur customers point us towards their sources (text, photos, videos),” explains Rich Pearson, the company’s Senior Marketing Director. “We fingerprint the content (creating the ‘DNA’) and compare these fingerprints to the ‘DNA’ [recovered] from our web-wide crawl.”

The system them reports any matching content, describing how much of it was copied, whether it includes a link back to the source and whether the page contains advertising. Users can also receive information about the domain, including its history of previous copying, monthly traffic and search engine strength.

In one test, Attributor found that a picture of Megan Fox was the most copied of the pictures appearing in FHM and Maxim magazines’ lists of the 100 Sexiest Women. Only 13 percent of the copying sites linked back to the original image source… and 73 percent of those sites were ad-supported.

Those figures are only slightly higher than average. So far, Attributor has found that in general more than half of sites that copy content fail to include any form of attribution at all and more than 60 percent fail to provide a return link. Of most interest to photographers who use Creative Commons licenses though is that the biggest content copiers are commercial sites, or as Rich Pearson describes them, “those with advertising.”

“There is a small percentage of what looks to be inadvertent or honest copying — an example being a personal blog or hobby site; however, these examples are dwarfed by sites that exist to make money.”

In some ways, this goes to the heart of one of the biggest problems with Creative Commons licensing: the question of whether non-commercial use covers sites that earn from ads. For many photographers, the answer is no; most publishers, including large sites such as The Economist, are likely to disagree.

Won’t Pay? Lose Your Traffic… and Your Ads
Attributor’s biggest advantage though comes after the system has delivered its matching report. Once a photographer is able to see who has copied his or her works, they’re able to choose from three different requests from the copier: attribution and a link; a license fee or share of the page’s ad revenue; or a demand to remove the content from the page.

“[T]ypically, our customers want to start with link requests for non-commercial sites and revenue shares or license offers for commercial sites that are copying a high percentage,” explains Rich Pearson. “Removal requests (takedowns) are saved for the most egregious copying sites including those that are doing it persistently and have failed to respond to a link request or license offer.”

The results of requests for attribution and links appear to be quite positive. (According to Rich, “most people want to do the right thing – they just need to be asked!”) But the site does have some powerful weapons that copyright-holders can use if the owner of a site refuses to comply. Users are able to contact search engines through the Attributor system and request that the copying site be removed from search results. If they want to get really mean, they can also ask the ad network to remove ads from the page.

“Non-responses happen a small percentage of the time, but preventing [those sites] from being found and eliminating their ability to make money is an effective response.”

That would certainly give a lot more bite to a request to share advertising revenue from a site using a stolen image. In theory, it could even revolutionize the way images are licensed online. Photographers could let publishers help themselves to photos published on their websites, blogs and Flickr streams, then track down commercial users later for payment.

Clearly though any revenues that photographers pick up through the system would have to be measured against the cost of using it. Attributor hasn’t yet rolled out a pricing scale but Rich Pearson says that they hope to be offering packages of between $10 and $20 a month. He would however like to hear what photographers think.

You can tell him what you think below and sign up for the Beta at www.attributor.com

Photography: Starslate

If you think understanding photography law can be a nightmare, try dealing with the horrors that can happen when you don’t understand it.

Or when publishers choose to ignore it, stock agencies hide behind it or subjects try to use it to restrict the use of images.

Here are five photography court cases that should scare the bejesus out of photographers.

1. Lara Jade Coton Versus Bob Burge and TVX Films

Lara Jade Coton, who we interviewed here not long after the story broke, was a 14-year-old schoolgirl in England when she shot a self-portrait wearing a top hat. She was still under 18 when Bob Burge, owner of TVX Films put the photo on the cover of a porn film called “Body Magic.”

Lara Jade, now an 18-year old photography student, had placed the image on deviantART, protected (she’d hoped) with a watermark and copyright symbol.

After being told that her self-portrait was being used to promote porn, Lara Jade contacted Bob Burge who was less than polite. Complaining that her photo was harming sales anyway, he promised to change the cover of his Hustler-rated DVD.

Months later, ads for the film featuring Lara’s image could still be found on the Web.

It was only when Lara Jade used her Flickr page to describe what happened that things really took off. She received press coverage around the world, comments of support from hundreds of photographers… and a court case filed against Bob Burge and TVX films in the summer of 2007.

Photography: Lara Jade Coton

2. Flickr Member Sues Virgin Mobile after Appearing in Australian Ad

Lara Jade isn’t the only underage victim of a company trying to promote itself. Alison Chang, a 16-year-old from Bedford, Texas was photographed flashing a victory sign at a church fundraiser in April 2007. The photographer, a youth counselor, posted the image on his Flickr stream with a Creative Commons license.

Advertising executives at Virgin Mobile Australia grabbed the image and placed it on at least one bus shelter with the caption “Dump your pen friend.”

Ryan Zehl, an attorney for Ms. Chang was quoted in the Dallas Morning News saying:

If a company uses your face in its ads without your consent, then you’re entitled to whatever money those ads generate for the company… It’s Texas law.

Australia, of course, is a long way from Texas but the law suit does touch on all sorts of important issues, including model releases, privacy and copyright as it relates to Creative Commons licenses.

3. Corbis Sued For Losing Photos

Most photographers have nightmares about something happening to their images. So they keep back-ups and they trust stock companies to do the same.

Or at least to look after their photos properly.

Corbis didn’t do either. Early in November 2007, photographer Chris Usher won his suit against the stock company after discovering that it had lost 12,640 of his analog images — one in four of the images the photographer had submitted.

Usher, who used to represent himself, had signed up to Corbis to supplement his sales to Time, Newsweek and other major publications. He asked for his images back when he grew disappointed at Corbis’s licensing deals and billing practices.

Corbis initially denied that they had lost any of Usher’s photos but admitted on the first day in court that they might have misplaced a “mere 5,877.”

This isn’t the first time that Corbis has been sued for losing photos. Arthur Grace was awarded $472,000 after Sygma, a French stock company that Corbis bought in 1999, lost 40,000 of his slides. That case will receive a new hearing and could lead to even higher damages. Chris Usher will have to wait until December to learn the size of his court-awarded compensation.

4. Passer-By Sues Philip-Lorca diCorcia for Selling his Photo

In general, if you’re in a public place, you can photograph it. And in general, if you want to sell an image of someone for commercial use, you need their permission.

Philip-Lorca diCorcia though, thought he was on safe ground when he set up strobe rigs in New York in 2006 and photographed people walking down the street. He didn’t put the photos on ads or mount them on billboards. He placed them in an exhibition and sold them as prints.

And he was sued by Emo Nussenzweig, an Orthodox Jew, who appeared in one of the photos and considered the sale both an invasion of his privacy and a breach of his religious rights.

The court ruled that although ten copies of the images had sold for up to $30,000 each, they were still considered works of art, were not commercial and were therefore protected under the First Amendment. Nussenzweig’s appeal was filed too late to be considered.

5. Goosed Farmer Seeks $7.5 Million in Damages for Photo

You might be able to argue that a work of art is not commercial but photographer John Burwell could struggle to make the same claim for an image he shot that appeared on greeting card.

The photo, which was taken in 1996 at the State Fair of Virginia, shows poultry farmer Andrew Marsinko with a goose on his knee. Burwell submitted the image to Jupitermedia who licensed it to a company called Leanin’ Tree.

Leanin’ Tree used the photo on the cover of a greeting card with the caption “Since it’s your birthday, you decide — Would you rather get spanked… or goosed?”

Marsinko, who was a well-known figure in goose-breeding circles, is now an even more well-known figure.

He is suing Burwell and his wife, Jupitermedia, Getty Images (who bought the rights to the image) and Leanin’ Tree, for defamation, unauthorized use of a picture, conspiracy and attempted conspiracy, and reckless infliction of emotional distress. Marsinko claims that he did not sign a model release form.

Photography: Courtesy of Roanoke County Circuit Court

If you’re not certain about photography law, talk to a lawyer or check out the writings of Carolyn Wright or Bert Krages.

[tags] lara jada coton, photo legal issues [/tags]

Few photographers can honestly say that they understand everything they should about photography law. That’s not entirely their fault. The laws relating to photography are anything but straightforward and when faced with a Cease And Desist letter, most photographers find that it pays to obey rather than fight a case that even if they win, would leave them with legal bills larger than the photo is worth.

The result is few test cases and lots of fuzziness about what can and can’t get a photographer into trouble. In general though, it’s the user of the image — not the photographer — who’s the first port of call for someone with a lawyer on their speed dial. As long as you’re honest, up-front and don’t do anything as silly as stealing someone else’s images, you should be fine.

Here though, are five things that might get you into trouble:

1. Breaching Logo Copyright
It’s not easy to get away from corporate logos these days. Shoot a street scene and you’re likely to find half-a-dozen in your viewfinder. But copyright holders get to say how those logos can be used. Put an image that contains the Coca Cola logo in a website design or a commercial, for example, and you can expect the drinks company to get in touch. (Put it in a newspaper though, and it’s editorial use, which is fair.)

Again, the logo rights holder will turn to the person who used the image not the person who took it. But don’t expect your buyer to be happy about that, and they might sue you to get their money back, and perhaps their costs too. Whether they’d win would be another question — you’re not responsible for how they use the photo — but you don’t really want things to get that far. If you’ve got a corporate logo in your photo, then that photo has limited use and you need to tell your client it’s there.

2. Breaching Image Copyright
Logos are easy to spot. The copyright surrounding images of locations are much harder. Some buildings are copyrighted, others aren’t. And some are copyrighted only under certain conditions. Julie Wohlberg, Director of Communications for Fotolia, points out that photographers can sell images of the Eiffel Tower, for example, but not if they were shot at night when the lighting display is copyrighted. “I worked as a journalist for many years with a major US media company and even though I was responsible for finding imagery to accompany my stories, I was never made aware of what landmarks are copyrighted,” she says.

If you’re selling a shot of a building for commercial use then, it’s worth doing your copyright homework about the site.

3. Selling An Image Without A Model Release
The conventional wisdom is that if you’re selling an image of a person for commercial use, you’ll need that person to sign a model release form. If you don’t have a model release form, you should tell the client; they’ll only be able to use the picture in an editorial context. If they use it for anything else, they’ll get sued, not you.

But tell that to photographer Philip-Lorca diCorcia who took a shot of a man in Times Square in 2001, sold ten copies for between $20,000 and $30,000 each and included it in a photography book. The man sued the publisher, the gallery that displayed the work, anyone who sold it… and of course, the photographer himself. He lost. The judge said that the image was art not commerce.

But who needs the hassle? If you’ve got a person in your photo and want to sell it for commercial use, either get a model release form or tell the client you don’t have one.

4. Using Someone Else’s Work To Make Your Own
Selling someone else’s work as your own is obviously a big no-no (although apparently it’s not big enough to stop some people from doing it). But taking someone’s image and using to create a derivative work does seem okay to some people.

It isn’t. Unless the work is in the public domain — and some useful images, such as many from NASA and other government agencies are — you can’t use it without the copyright holder’s permission. Not even if you distort enough to become unrecognizable.

5. Not Realizing That You’ve Given Away Your Copyright
Sounds too silly to mention, doesn’t it? And yet the opening up of commercial photography to talented amateurs has created two classes of people: rapacious buyers and naïve suppliers. The first feel it’s acceptable to ask photographers to give them their rights to a picture, not just a license to use it, and the second don’t understand what they’re agreeing to.

The result can be a photographer not being aware that he’s sold his copyright for a song — which is bad enough — but also being sued by the buyer for selling the image again — which is even worse.

The best solution is simple: make you’re signing away a license, not a copyright

For most photographers it’s outrageous, infuriating… and sometimes quite flattering too. The discovery that someone has taken a photo from their website or their Flickr stream and is using it without permission is both a nightmare for photographers and an inevitable risk of uploading photos. While it doesn’t happen to everyone, it does happen frequently enough to worry every online photographer.

But not all “photo thefts” are the same. When Icelandic photographer, Rebekka Guðleifsdóttir discovered that several of the images she’d placed on Flickr were being sold on eBay by a UK printing company, she was able to calculate the value of the prints sold at almost $5,000. That put a clear financial price on how much her copyright thieves had actually stolen.

When Lara Jade Coton, a British photography student, found that a self-portrait had been taken and used to promote a pornographic video however, the copyright infringement caused more damage to her sense of privacy than to her wallet (and a court case now under way will tell her how much that’s worth.)

And when The Economist’s blogs load up on Creative Commons Flickr images without informing their owners, they aren’t — strictly speaking — stealing at all. But not all the photographers we spoke to were happy to see their pictures on a Web page with advertising, and therefore in their eyes, commercial.

The problem for photographers is twofold. First, they have to protect themselves as much as they can. That can involve using watermarks; only uploading small images; and disabling the right mouse button, etc. But no measures are perfect.

“Reliance on DRM (digital rights management) is futile,” argues Allen Murabayashi, CEO of PhotoShelter.com, an online photo archive and distribution network. “There’s always gonna be some Swedish teen who can break your code.”

And the second is taking action once a copyright infringement has been discovered. Unless the infringement is particularly serious though, that usually involves letting the infringer know he’s been spotted and forcing him stop using the image. Even Rebekka Guðleifsdóttir had to make do with a letter from her lawyer and the removal of her images from eBay. She didn’t receive any compensation. “Recovering any money for infringements is a victory these days,” says Carolyn Wright, a photography lawyer.

That might be why Allen Murabayashi has a different proposal. “As an industry, we need to spend less time worrying about being ripped off, and spend more time making it easier for people to license,” he argues. “I will say that most photographers I’ve spoken to have a very realistic viewpoint of this. They don’t care if some kid rips off an image and uses it on their MySpace page. But they do care if that same image shows up on a t-shirt. So the distinction seems to be personal use versus commercial use.”

According to Allen then, photographers should simply accept the fact that their images are going to be used without their permission and only get angry when someone makes money from them.

Perhaps… or rather perhaps we have no choice. But maybe in addition to easier access to licensing — and perhaps clearer licenses too — photographers should be thinking about what they can demand in return for the unsolicited use of their images, such as a link back to their portfolio or a share of the advertising the page earns. It doesn’t hurt to ask.

Lara Jade Coton, who we interviewed here, has filed a lawsuit against TVX Films and its president Bob Burge. The suit filed in Tampa, Fl., accuses Burge and TVX Films of copyright infringement, civil conspiracy, misappropriation of her image, invasion of privacy and intentional infliction of emotional distress. The suit also names a number of online retailers in claims for copyright infringement.

Lara Jade, an 18-year-old photography student from England, had posted a photo of herself on deviantART. The image later turned up on the cover of a pornographic DVD called “Body Magic.” Lara Jade was 14 at the time she took the self-portrait.

When contacted, Bob Burge told Lara Jade that he had obtained the image from an adult freeshare website… but couldn’t remember which one. He also agreed to change the cover, claiming that it would probably increase sales.

“We’re asking a jury to award damages, including punitive damages, for the outrageous conduct of Burge and TVX,” Lara Jade’s lawyer Richard A. Harrison said. “We’re also asking the court to stop these pornographers from using the picture and to impound any copies of the movie or other materials on which Lara Jade’s picture appears.”

Photo: PRNewsFoto/Allen Dell P.A

[tags] lara jade coton [/tags]

Readers of the New York Times are having an interesting debate about whether ad companies should use post-production to alter the appearances of the products they’re promoting.

The argument was started by a reader of Pogue’s Posts, a technology column written by David Pogue, who noted that Apple’s images of the iPhone looked too good to be true. He believed that the phone and the screen had been shot separately, with the screen added in post-production.

Pogue agreed, explaining that he too struggled to show both hardware and the screen in the same lighting while shooting his Times videos. He concludes:

I once visited Palm’s headquarters in California, and that’s when I learned about this. So yes, I believe that ALL marketing photos of phones, laptops, and handhelds are Photoshopped with the screens layered on later!

That will come as a surprise to few and judging by the comments, as long as the final image isn’t misleading, most people don’t care how the image was produced. In fact, the general impressions seems to be that we should expect advertising images to have been altered and be naïve not to do so.

That does raise the question of when image manipulation drifts from enhancement to deception however. One iPhone user says that the screen really is as bright as it appears in the photos, even if the shot wasn’t taken naturally. Another points out that photographers of breakfast cereal use glue instead of milk to prevent the flakes getting soggy and milk looking watery. A third points out that:

in the cosmetics industry, beauty-shots of bottles of perfume or cologne are stitched together from several different photos. Photographers will usually get the best possible shot of the glass bottle first, then adjust the lighting and reshoot to get a good shot of the shiny metal top. Additional elements, such as ribbons or other packaging in the background, will require additional, separate shoots. Then, when the various pieces of the bottle are brought together in Photoshop, a photo retoucher will map the company logo and labels onto the bottle directly from the original electronic artwork.

You could argue that all those techniques help to recreate a reality distorted by strong lighting and the effect of the camera. But the last contributor raised an important question: “When has your Big Mac ever looked as good as it does in McDonald’s advertising?” he asked.

Maybe making Big Macs appear as food is the line between enhancement and deception.

It’s become almost routine. Whenever you join a website or download a program, you tick a little box that says that you’ve read and agreed to the Terms of Service.

Most of the time, you don’t actually read the Terms of Service. If you do ever try make sense of the pages of legalese, you’ll usually find you’re agreeing that it’s not the company’s fault if you get struck by lightning while using their site in a thunderstorm, but if you do decide to sue, you’ll have to do it in Alaska. Or something like that.

Most of the time, such as when downloading an update or joining a membership site, ticking the box blindly doesn’t do any harm and can actually save you some painful reading.

The exception is when the stage after ticking the box is to upload pictures. When photographers do that, they’re handing over an asset to someone who’s going to do something with it. It isn’t fun, but the only way to know for sure that what they’re going to do with your image is fair is to read the small print.

Most news-related photography sites such as Scoopt and Citizen Image, for example, require photographers not to sell their images through anyone else for three months. As soon as you upload a newsworthy picture then, your rights to that image are frozen for a quarter of a year, after which time the picture is not likely to be worth anything anyway. It’s worth knowing that when you hit “send,” you’re betting the value of the shot that that site is going to do something with it.

At least that’s clear though. Other sites have such long legal documents that it’s unlikely that anyone has ever read them all. The legal section at istockphoto.com, for example, consists of ten different agreements. The bit that’s really important comes in Section 3, Paragraph C of the Artist’s Supply Agreement (Non-Exclusive). It says:

The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to iStockphoto or any third party except as provided in this Agreement and the Content License Agreement.

So the pictures you upload are yours and remain yours. The rest is detail… that you still have to read.

The one place where it’s an absolutely, no-quibble, certain obligation to read the small print is when you sign up for a photo contest. There are lots of these nowadays and some of them are easy ways for the organizers to load up on free images. The terms of service for the American Automobile Association’s PetBook photo contest, for example, states:

All photos entered in the contest, including the prize-winning photo(s), along with all rights of every kind therein, become the sole and exclusive property of AAA and will not be returned.

That’s a respectable organization doing something very disreputable.

It’s acceptable for a contest to use entrants to promote itself. It’s not acceptable to use them for anything else after the contest has ended. In general, the bigger the contest, the less likely the organizer is to take liberties with your copyright, but that’s not always true.

If you don’t read what the organizer has to say about your rights, you just won’t know what he’s going to do with them.

A post on the Chicagoist describes the trouble the author ran into when taking pictures on the Chicago Transit Authority. After shooting a few quick snapshots, she was approached by a CTA employee who ordered her to put her camera down. The photographer agreed but pointed out that the Authority allows photography on its premises, to which the employee responded by threatening her with imprisonment. “I could send you to jail for taking these pictures, so stop arguing with me!” he said.

As the author of the article notes, she isn’t the only one to have run into trouble while taking pictures of Chicago’s trains. There’s a whole discussion on Flickr devoted to the subject.

So she wrote to the CTA’s Vice President of Marketing and Communications, Noelle Gaffney, to find out what exactly the policy was. The answer was polite, long and a little opaque. Mostly it stated that photography is restricted to public areas, should be done without large equipment and shouldn’t be obstructive. But it also included this:

“Instructions given to our personnel make it very clear that they must do their best to distinguish between tourists and people just taking a couple of snapshots compared to professional photographers, production companies or someone who is taking an extended period of time or showing an unusual interest in areas of the station or equipment that would not be of interest to an average customer.”

The problem that struck us was that these days there isn’t a huge difference between people taking snapshots and professional photographers. After all, if those “snapshots” turn out to be good enough, they could be sold as microstock and generate hundreds of dollars.

So we wrote to Bert Krages, author of The Legal Handbook For Photographers, to get his take on the CTA’s photography policy. This was his response:

As best I can tell, the CTA policy is dealing with the issue of passenger obstruction and is not concerned about how the photographs are used. There is no formal legal distinction between commercial and noncommercial photography, instead CTA is relying on its right as a property owner to set conditions on entry into its facilities.

Prohibiting people from setting up equipment such as tripods and lighting is within the CTA’s right in much the same way they could reasonably prohibit non-photographers from placing other obstructions in the public areas.

I don’t see how the CTA policy could be interpreted as entitling CTA to the recover against a photographer that sells an image taken on CTA property. However, it could be used to order a photographer to leave a platform if that photographer had no permission to set up a 120-person nude shoot featuring an inflatable elephant against a 20 x 30 foot backdrop and lit by dozens of soft boxes. In other words, this aspect of the policy appears to be a reasoned measure to ensure that the general public is not obstructed when traveling on the CTA system.

That all sounds fair enough. You can shoot in public areas of the Chicago Transit Authority and sell the images, whether or not that was your intention when bringing out your camera. (Although presumably, the CTA’s logo itself is copyrighted, which could give you other problems.) You just have to do it without a tripod and without getting in anyone’s way.

Photo of the red line express train by Chris&AmyCate.

Photographers have a new ally in their fight to protect copyright. The Copyright Alliance is a recently-launched lobby made up of artists’ groups, trade associations, companies and others in the creative professions.

“Our primary focus is to foster a better understanding not just of copyright law but of the societal benefits of copyright,” the Alliance’s Executive Director, Patrick Ross told us by email. “We believe when an artist has the rights he or she needs to choose how to distribute a work, earn money on it and be encouraged to create again, that we all win from the creation of new works we can enjoy lawfully.”

Although the Alliance will attempt to influence policy, Patrick said that the law itself is pretty sound — when understood and enforced. Much of the Alliance’s work then will be educational, promoting the idea that copyright is good for creators and good for the country.

“[T]here’s widespread confusion about terms such as ‘fair use’ in the general population, where people often think that if an action is convenient, then it must be ‘fair,’” Patrick explained. “We have to inform them of the harm that comes to artists and how that will impact the future of creativity.”

Fortunately, that includes the creativity of photographers. The Alliance’s members include the American Society of Media Photographers and the Professional Photographers of America.

“Often, when people rationalize infringement, they do so by targeting wealthy musical performers and Hollywood stars,” Patrick said. “But few photographers get paid Annie Liebovitz money. The Copyright Alliance is showing America a face of copyright they don’t normally see or think about… it also helps remind them that photographers take copyrighted works and those works should be respected as much as a song or movie.”

Of course, telling the public that swiping copyrighted works actually causes harm doesn’t necessarily mean that they won’t take them. But talking about the importance of educating college students about copyright, Patrick did make an interesting observation. “It helps when some of them are creating copyrighted works themselves,” he said. Maybe the camera phone sitting in every student’s pocket will turn out to the best tool for keeping copyrighted works safe.

[tags] copyright alliance [/tags]

It’s annoying enough when someone steals your photo. It’s even worse when the photo is a self-portrait. When the picture was taken at age fourteen and reappears on the cover of a porn DVD, things are about as bad as they get.

But that’s what happened to Lara Jade Coton, a 17-year-old photography student from the Midlands in England. Jade had posted the picture on deviantART, complete with copyright symbol and watermark. Someone familiar with her work then spotted it on the cover of a DVD called “Body Magic,” a film which proudly boasts “Hustler’s highest rating.”

Shocked, Lara traced the movie back to a Texan company called TVX Films, who she says on her Flickr page, make new covers for old sex films. She sent them “a long and ‘friendly’ letter” and received a reply from the company’s owner stating that he doesn’t steal images and that he received the picture from a company with whom he’s been doing business for 25 years.

“Apparently they got it [the picture] from an adult freeshare website,” Lara told us by email. “But they can’t remember the link.”

Although the company stated that it would stop selling the DVD until the cover was replaced, the email exchange — or at least the pornographer’s side of it — was pretty unpleasant. In fact, it was as much the reaction of the company’s president as the act itself that prompted Lara to seek legal action. “If the president of TVX would have resolved this professionally in the first place, rather than being rude [it would have been a lot easier],” she said. “He’s just made things ten times harder for himself.”

Not that things were easy for Lara. Lawyers told her that it would cost around £50,000 to take TVX to court in a demand for compensation. And she found that the image was still being used by retailers. (Someone claiming to represent TVX commented on consumerist.com that the cover was immediately replaced, but admitted that some websites “still feature the older cover, and they have not changed that image – but are selling the film with the revised cover.” That sounds like a very expensive confession.)

So Lara turned to the photographic community. She posted a plea for help on Flickr, describing what had happened and displaying the stolen photo.

That seemed to get things moving. Her post generated over 400 comments and attracted the attention of the press in places as far apart as Sweden, Chile and Italy, as well as publications in England. A legal process has apparently started, although until it’s confirmed Lara feels unable to talk about it in detail. “However, the media has been a huge help,” she said.

So is this a victory for the collective power of photographers? Not yet, and even if Lara is able to sue TVX for very large sums of cash, not even then. The reason that Lara has been able to make the progress she has is not because she has the legal system working in her favor but that she has the press and public opinion working in her favor. If the stolen image had been not of a 14-year-old girl but of a top hat, and if it had appeared on the cover of a fashion video and not a sex film, would the picture-thief have changed it — and compensated her? Even with the support of 400 other photographers, it’s hard to believe, isn’t it?

Self-portrait by Lara Jade Coton.

[tags] lara jade coton [/tags]

Carolyn Wright, who we interviewed here, has a fascinating post on her blog PhotoAttorney.com detailing the result of a recent photography-related court case.

According to the post, Chase Jarvis, a professional photographer licensed thousands of photos to K2, a sports goods company. The relationship didn’t work out but K2 continued to use Jarvis’s pictures without paying him and without giving him credit. Jarvis sued… and won.

So far so interesting, but it gets better. In awarding Jarvis damages, the court had to come up with values for each use of each image. The breakdown included these figures:

For each slide that K2 lost and didn’t return: $500
For each online use of an image without permission: $461
For each failure to provide a credit:
Online: $50
Print ads: $200

There were other awards too and it all added up to a tidy sum of money for Chase Jarvis — $250,507 to be exact. But it also provides some valuable information for other photographers.

First, the court stated that its figure of $461 for improperly using images online reflected “fair market value.” If you’re selling usage rights to a client and wondering how much to charge then, you can do worse than use that figure as a guideline. Much will still depend on how much the client can afford to pay and how much less you’re prepared to accept, but at least as far as online usage is concerned, that figure can make a useful target for Rights-Managed photos.

And if you find that any photo of yours has been used online without credit, you now have ammunition to demand a $50 fee.

Second, much of the reason that the court ruled in favor of Jarvis was that the agreement between the two was limited in time. Most of K2’s problems occurred because the company continued to use the images after the contract had expired when it no longer had the right to do so.

If you’re selling the rights to use your image then, it’s worth making sure you get those rights back when the client has finished using them — or even if he doesn’t use them at all.

The most valuable lesson of all though is that when your rights have been infringed, taking action can be well worth the effort.

[tags] carolyn wright, photoattorney, chase jarvis, k2 [/tags]