PPE 2013: Photography & The Law: Access, Copyright and Social Media Issues

During a talk at PhotoPlus Expo 2013, sponsored by the National Press Photographers Association (NPPA), attorneys Mickey Osterreicher and Alicia Wagner Calzada provided tips for how photographers can protect their First Amendment rights and control the copyright and distribution of their work.

Tips On the Right to Photograph in Public

Osterreicher, who is the general counsel for the NPPA and was a working photographer for 40 years before he became a lawyer, offered advice for news photographers in dealing with police.

He noted that photographers or videographers are never arrested for documenting a news event in public. Instead they are arrested for “discretionary charges,” what he termed “catch and release” charges, which can include disorderly conduct, disturbing the peace and loitering.

If a police officer orders a photographer to stop taking pictures in public, they are violating the rights of that photographer, Osterreicher said. Photographers can avoid being accused of interfering with or obstructing police officers by following reasonable directions from police when they’re given. He also mentioned that it’s prudent to be aware that officers are concerned with things like weapon retention, making sure nobody is close enough to them to reach for their gun. If a photographer is in an officer’s face with a camera, the officer can reasonably claim that photographer is interfering or obstructing their work.

If an officer does arrest a photojournalist, there is “the presumption that an officer is telling the truth” when they fill out their report. Often what the officer claims happened that justifies the arrest differs from what actually happened, so it’s important to keep the camera rolling if you are shooting video, keep taking pictures, or have someone with you videotaping the arrest.

Osterreicher recalled the arrest in 2012 of New York Times photographer Robert Stolarik while he was on assignment in the Bronx. The arresting officer claimed Stolarik had been interfering with his arrest of a young woman by discharging the flash on his camera. When it was proved that Stolarik didn’t use a flash, have one on his camera, or even own a flash, the officer was indicted on perjury charges.

Osterreicher also mentioned that those photographing federal buildings would do well to carry the Dept. of Homeland Security Directive that states that it’s legal to make images of federal buildings.

Tips On Copyright

Attorney Alicia Wagner Calzada, the NPPA Advocacy Chair and an attorney for the NPPA, did her best to convince the audience that copyright is simple. While copyright may not be that clear in the age of social networks, there are elements of copyright law that are easy to understand. While they may be basic knowledge to many, there were several people in a large audience who had questions about many of the basics Calzada reviewed, so they bear repeating:

Copyright is created the moment an image is made, Calzada said. The owner of that copyright is the author, and unless a photographer is working as a staff employee for a corporation, they are the author and copyright owner. It does not matter who owns the camera or equipment.

In cases where a photographer is working as a staffer, the corporation is the “author” of the images the photographer makes and is considered the copyright holder.

There are two ways a corporation can own your copyright if you made an image as a freelancer (rather than as an employee): 1, if you signed  a written work-for-hire agreement, or 2, if you signed an agreement to transfer the copyright to the corporation.

Copyright transfers have to be in writing, and they have to be signed, Calzada said. She added that she was not aware of a case where an email has been argued to be a legally binding agreement for copyright transfer, but did note that the click-through agreements for website terms of service can be upheld in court, so there is the possibility that a digital process of signature could be argued in a case of copyright transfer in the future; she advised the audience to avoid being a party to such a case.

Copyright holders can license the use of their images through a written agreement, but oral agreements and implied agreements can also be made. As an example of an implied agreement, Calzada noted that her wedding photographer had given her the negatives of the images he shot at her wedding. The implication was that she is going to make prints of the images.

Calzada said that before a photographer agrees to take photographs for someone, they should have the terms of their agreement and the license they are granting to the client in writing. Having clearly spelled out terms helps to “create good relationships with your clients,” she noted.

An audience member noted that a client had asked her to sign an agreement for work she had already done and delivered, claiming the agreement was necessary for the company to pay the photographer. Other audience members had similar experiences. Calzada rubbished that practice. If a company has asked a photographer to take pictures and agreed to a fee for that work, they are “already legally obligated to pay you,” Calzada said. Companies shouldn’t demand a new agreement in order to issue a check after a job is finished.

If a client doesn’t offer a photographer a written agreement, “you may want to offer them your written agreement,” she said.

Turning to copyright registration, Calzada said photographers do not have to register their images with the copyright office to gain copyright, but if they do so they receive improved protection under the law.

If a photographer has registered their copyright before an infringement happens, for instance, they are entitled to statutory damages and attorney’s fees from the infringer. Calzada pointed to ASMP’s copyright registration guide as a valuable resource: http://asmp.org/tutorials/registering-published-images.html

When registering images, she said, it makes the most sense to register the original, unretouched image because derivative works—i.e. post-production versions of the image—would also be covered under the copyright.

She also noted there is a three-month grace period for registering copyright after an image has been published when the image can still be registered, and that the procedures for registering published and unpublished images are different. In the internet age, however, there is some question as to what constitutes “publishing” an image and pointed to an ASMP analysis as a good starting point for understanding the published vs. unpublished debate. http://asmp.org/tutorials/published-or-unpublished.html#.UmmWciSoVXg

In response to audience questions Calzada also noted that the cost of a copyright infringement suit, which must be brought by an attorney in federal court, can often run into six figures, and is prohibitively expensive for a lot of photographers. There is a proposal from the US Copyright Office to create a small claims court in which copyright holders could bring their own cases, but whether or not it will be made into law by Congress is unknown.

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