27 Jul, 2010 | Posted by: psn










Federal Court

Disallows Improper

Bulk Copyright

Registrations


by
Joel L. Hecker, Esq.


It is a regrettable fact that, for a variety of reasons, most photographers do not register their photographic images, thus depriving the photographers and their stock agencies of the right to obtain statutory damages and attorneys fees in connection with copyright infringement claims.

In an attempt to remedy this situation, Corbis and other stock agencies began to offer their contributing photographers an option of transferring copyright to the agency for purposes of copyright registration. After the images were registered, the agency would then reassign the copyright back to the applicable photographers.

To confirm that this practice would hold up, the Picture Agency Council of America (known as PACA) had a dialogue with the Copyright Office in early 2002 in an attempt to obtain official Copyright Office approval of this practice.

On February 12, 2002, the Copyright Office’s Chief of the Examining Division confirmed in writing that the Copyright Office considered the copyright claim
“to extend to the photographs themselves because, assuming that the claimant [owner of copyright] listed at space 4 is the author of the compilation [usually the stock photo agency], an acceptable transfer statement is also provided in space 4 of the form VA. Thus, the Office interprets the claim to extend to the individual photographic authorship for which the names indicated as space 2b of the form VA are the responsible authors.”

The Copyright Office further wrote: “that the Copyright Office preferred, but did not require, the registration application to contain the names of all of the photographers on continuation sheets.”

As a result, Corbis and other agencies continued the practice of registering hundreds of images as part of a single copyright registration application without always separately listing each individual photographer.

Beginning in March 2001 and continuing through December 2006, photographers Marc and David Muench, doing business as Muench Photography, Inc. (“MPI”), licensed approximately 180 of MPI’s images to Houghton Mifflin Harcourt Publishing Company (“HMH”) through Corbis, its stock photo agency. In 2009, MPI sued HMH in the United States District Court for the Southern District of New York, alleging that HMH exceeded the scope and terms of the licenses granted, which acts constituted copyright infringement.

On January 18, 1996, David Muench filed a copyright registration certificate for a collection of unpublished photos, covering 20 of the images at issue. Muench listed himself as the author. Since the individual author of each was listed on the copyright certificate the court found these 20 to be properly registered.

On September 30, 1997, the Muench brothers transferred legal title in their other images at issue to Corbis, solely for the purposes of copyright registration.

Corbis then submitted six copyright registration applications to the Copyright Office which registered several automated databases of photographs, including these Muench images.

Each application form filed by Corbis, listed itself as one author, and listed the names of only three individual photographers “and others”, or “and (number) other photographers”. Corbis did not list MPI, Marc Muench or David Muench as an author of any of the photos contained in the automated databases.

The Court’s Decision

The defendants moved for summary judgment to dismiss the case on the grounds that the photos were not properly registered by MPI since the actual registration certificates did not list MPI as an author (it was one of the “others” listed by Corbis).

The court framed the issue as follows:
The Court is faced with the novel question of whether the registration of an automated database--here, a compilation of photographs by different photographers--by a third-party copyright claimant that has been assigned the rights to the individual works for the purposes of copyright registration registers the individual works thereby permitting the individual photographers to sue for copyright infringement.
The court determined that the copyright registration procedure required information about the copyright claimant, the particular work, and the author of the work. Specifically,” said the court, “the application must include the name and nationality or domicile of the author or authors." When the work at issue is a compilation, the copyright, "extends only to the material contributed by the author of such work."

MPI argued that the text of this section,103 of the Copyright Act, together with case law and the Copyright Office's letter, provide that the registration of a collective work covers the individual works even if the individual authors' names are omitted from the registration form.
The Court rejected this reading of the statute as “misguided”.

No Deference Given to the Copyright Office’s Interpretation


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28 Apr, 2010 | Posted by: psn





Photographers Commence

Class Action Against

The Google Book Project



As you know, in 2005 the Authors Guild and the Association of American Publishers filed a class action lawsuit against Google in connection with Google’s scanning of books from university libraries, without the consent of the copyright owners of the books scanned. The lawsuit alleged that Google’s acts, as part of the Google Book Search Project, constituted copyright infringement.

Since then, the parties reached a proposed settlement agreement, which was met with substantial opposition. As a result, an Amended Proposed Settlement Agreement was negotiated among the parties and filed with the court. The Department of Justice (DOJ) filed a Statement of Interest concerning this Amended Proposed Settlement, which was generally supportive of the concept but opposed to specific features which the DOJ believed did not provide sufficient protection nor did it satisfy certain anti-trust issues.

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Google is committing massive copyright infringements of visual works similar to its infringements of text-based works (as alleged in the Author’s Guild lawsuit) and that the visual artists must be included in the process.



- - - - - - - - - - - - - - - - - - - - - - - - -


The Amended Proposed Settlement specifically excluded almost all photography and graphic art works. As a result, a motion was filed on behalf of the American Society of Media Photographers (ASMP), the Graphic Artists Guild (GAG), the Picture Archive Council of America (PACA), the North American Nature Photography Association (NANPA) and various individual photographers to intervene in the action and thereby have such organizations and the visual artists they represent be included in any resulting settlement.

On November 4, 2009, Judge Denny Chin, who was assigned to the case, denied the motion and refused to permit the intervention, concluding that these visual artists had acted too late (the case was then four years old), and in his view, the case primarily involved textual content and not visual works. Judge Chin stated in his denial of the motion that: “Frankly, in the context of an online database that is searchable using keywords, it makes sense to prioritize the rights of word-based material.”

ASMP disagreed, releasing a statement in which it said that it “believes that the Court’s decision missed the basic truth that a settlement that excludes photographic and other visual material is neither fair nor in the public interest.”

ASMP, GAG, PACA, NANPA, Professional Photographers of America, and individual photographers and graphic artists have now regrouped and on April 7, 2010, they filed their own class action lawsuit against Google, alleging copyright infringement by Google of visual artwork arising out of Google’s Book Search Project. This new case was also assigned to Judge Chin as a case related to the ongoing Authors Guild litigation.

The Photographers’ Complaint


The 21 page complaint alleges that it is “designed to redress the most widespread, well-publicized and uncompensated infringement of exclusive rights in images in the history of book and periodical publishing.” That “evil” is, of course, the Google Book Search Project under which Google is essentially scanning entire library collections and thereby creating dig ital archives of what eventually is intended to be an online database of all of the world’s books.

The proposed class is defined as all persons and entities that own the copyright and/or the relevant exclusive rights in an original visual work published in books and/or periodicals, excluding Google and essentially any person or entity associated with Google.

The complaint also alleges that Google concedes it has scanned more than 12 million books in their entirety and has identified more than 174 million other books it may also reproduce, distribute and publicly display. Furthermore, the complaint alleges that Google uses and plans to continue to use these visual works to attract visitors and advertisers to its website.

All in all, the complaint can be summarized as alleging that Google is committing massive copyright infringements of visual works similar to its infringements of text-based works (as alleged in the Author’s Guild lawsuit) and that the visual artists must be included in the process.

The complaint seeks an injunction to prohibit Google from continuing its Book Search Project as to visual works, as well as actual and statutory damages. However, the obvious intent of this complaint is not to kill the project, but force Google to include visual works in any overall settlement with the Authors Guild.

The newest wrinkle in this ongoing saga is that Judge Chin, nominated for an opening on the U.S. Second Circuit Court of Appeals, and now confirmed by the U.S. Senate, will not preside over the ASMP lawsuit. Another Judge will be assigned to the case as well as any leftover matters pertaining to the Authors Guild suit.

We certainly have not heard the last of these matters.





Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com.


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23 Mar, 2010 | Posted by: psn



Postage Stamp Photo is

No Longer Fair Use

by Joel Hecker, Esq.



I previously reported on the decision in Gaylord v. United States (United States Court of Federal Claims, decision dated December 16, 2008) which held that the United States Postal Service’s issuance of a 37 cent postage stamp commemorating the 50th anniversary of the armistice of the Korean War, was a fair use and not copyright infringement (PSN January 29, 2009). This decision has now been reversed by the Federal Circuit Court of Appeals, which remanded the case to the Court of Claims for a determination of damages against the government.

The stamp features a photograph of 14 of the 19 stainless steel soldier sculptures that are part of the Korean War Veterans Memorial located on the National Mall in Washington D.C. Plaintiff Gaylord sculpted these 19 soldiers in formation, known as “The Column” and obtained registrations for it from the Copyright Office. He therefore was acknowledged as the copyright owner of the sculpture.

An amateur photographer, John Alli, created a photograph of the sculpture as a retirement gift for his father, who served in the Marine Corps in Korea. In 2002, the Postal Service licensed use of this photograph for $1,500 and incorporated it into the stamp image. The photographer did not seek Gaylord’s permission but did tell the Postal Service that it would need the permission of the owner of the copyright to the sculpture as well as his permission to use his photograph.

The Postal Service, however, also did not seek Gaylord’s permission to depict his sculptures on the stamp and produced approximately 86.8 million stamps between July 27, 2003 and March 31, 2005. Gaylord then sued the Postal Service for copyright infringement.

Both courts agreed that Gaylord owned a valid copyright in the sculpture, that the photographer had access to it when creating his photograph, and that the stamp was substantially similar to the sculpture. Both courts then addressed the fair use defense by analyzing the four fair use factors, but came to different conclusions.

First Fair Use Factor :The purpose and character of the use, including whether the use is of a commercial nature.

The appeals court rejected the lower court’s decision which held that something new had been added to the sculpture, with a further purpose or different character. It found, to the contrary, that the commercial nature of the use, the sale of stamps, was not transformative, noting that the inquiry must focus on the purpose and character of the stamp, rather than that of the underlying photograph. Since the stamp did not reflect any “further purpose” than The Column, the appeals court held the use was not transformative.

The appellate court therefore found that the first factor of the fair use analysis weighed heavily against fair use.


Second Fair Use Factor: The nature of the copyrighted work.

As to the second fair use factor, the nature of the work, the court held that this factor went against fair use since the purpose and character of the stamp and the column were identical. (The lower court had found this factor not to be significant in light of its finding of transformative use).

Third Fair Use Factor: The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

The appellate court agreed with the lower court that, since the stamp depicts 14 of the 19 soldiers statues, it was a substantial taking and therefore weighed against fair use. However, it rejected the lower court’s determination that the qua lity and importance of the statues in the stamp mitigated such finding due to the heightened surrealistic effect which served to obscure the statues.

Fourth Fair Use Factor: The effect of the use upon the potential market for or value of the copyrighted work

The appellate court found no clear error in the lower court’s determination that there was no resulting market harm to the sculpture. The lower court had found that Gaylord made only limited attempts to commercialize his copyright in the sculpture and it was unlikely that the stamp would impact future attempts to commercialize Gaylord’s copyright, because the stamp is just not a substitute for the sculpture. In fact, the lower court’s opinion also suggested the use of the stamp actually increased the value of the sculpture.

Conclusion


Taking these factors together and especially the lack of any transformative aspect, the appeals court rejected the lower court’s finding that use of the stamp was a fair use under the Copyright Act, and reversed the decision, finding such acts constituted an infringement of the copyright in the sculpture. As is evident, the facts of the case are extremely important in determining a fair use defense. The single most important aspect is whether the use is transformative. If it is, the fair use defense will almost always succeed. If not, as found by the appellate court, it will almost always fail.

© Joel L. Hecker, 2010



Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com.


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09 Feb, 2010 | Posted by: psn






Two Decisions Confirm

Copyright Protection

For Product Photos


By Joel Hecker, Esq.

On November 5, 2009, the United States Court of Appeals for the Seventh Circuit reversed an erroneous decision out of the United States District Court in Chicago, and on January 14, 2010, a United States District Judge in New York reached the same conclusion, that photographs of products taken on assignment can be protected by the photographer under copyright law.

Background Facts

The Seventh Circuit case, Daniel P. Schrock v. Learning Curve International, RC2 Brands, Inc, and HIT Entertainment, concerned the popular “Thomas & Friends” train characters. HIT licensed the right to make toy figures of its train characters to defendant Learning Curve (now owned by defendant RC2 Corporation). Learning Curve then retained Schrock to take photographs of its toys, including those based upon the Thomas & Friends properties.

Schrock granted limited rights to Learning Curve to use his resulting photos of Learning Curve’s products. This arrangement continued on a regular basis for about four years. Schrock’s invoices, eventually totaling more than $400,000, were paid in full.

Learning Curve stopped giving work to Schrock in 2003, but continued to use some of Schrock’s photos in its printed advertising, packaging and on the internet. In 2004, the photographer registered his photographs with the Copyright Office and obtained copyright registration certificates in his name. He then brought his lawsuit for copyright infringement.

On defendants’ motion for summary judgment, the primary issue was whether Schrock’s photos, as derivative works of the actual toys, were sufficiently original to obtain copyright protection, and whether defendants’ consent was required for Schrock to register the photos with the Copyright Office.

The district court, focusing on the derivative issue, granted summary judgment and threw out the case.

The Copyright Act

A derivative work is defined in the Copyright Act as a:

“…work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which as a whole represent an original work of authorship, is a ‘derivative work.’”


The appellate court assumed that Schrock’s photos came within the definition of derivative works since they “recast, transformed or adopted” the three dimensional toys into a different, two-dimensional medium. But that was only the beginning of the analysis.

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20 Oct, 2009 | Posted by: psn





President Appoints

IP Czar


On the October 13, 2008 President Bush signed into law the 25 page “Priority Resources Organization for Intellectual Property Act of 2008," which is more commonly known as PROP IP.

This law, among other things, created a new bureaucracy headed by an Intellectual Property Enforcement Coordinator (IPEC) to be appointed by the President with the advice and consent of the Senate. The position has informally been referred to as the “Copyright Czar” or “IP Czar.”

The duties of the IPEC under the Act are extensive, including the creation of a joint strategic plan to deal with worldwide counterfeiting and piracy, and chairing an Advisory Committee consisting of Senate confirmed representatives of government departments and agencies involved in intellectual property enforcement. An annual report must also be prepared by the IPEC and submitted to the Congress and disseminated to the public at large.

On September 28, 2009 President Obama appointed Victoria Espinel to the position of IPEC, subject to confirmation by the Senate.

Ms. Espinel is an expert on international copyright enforcement. She was the first Assistant United States Trade Representative for Intellectual Property and Innovation at the Office of the U.S. Trade Representative and served as the Chief U.S. Trade Negotiator on IP subjects. She has also served as an advisor on IP issues to various House of Representatives and Senate committees, taught IP Law, and is the founder and president of Bridging the Innovation Divide, a not-for-profit entity.

The Appointment has been praised by various rightsholder groups representing the photography, music, entertainment, and other affected industries.

© Joel L. Hecker, 2009


Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com.


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09 Sep, 2009 | Posted by: psn





For photographers:



If you’ve been questioned by security guards, uniformed policemen, pranksters, off-duty policemen; detectives, or vigilantes, -- here’s where you can go for a review of your First Amendment Rights:


http://www.krages.com/ThePhotographersRight.pdf



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02 Sep, 2009 | Posted by: psn




OBAMA HOPE POSTER LITIGATION -

AP RESPONDS TO PHOTOGRAPHER’S INTERVENTION



by Joel Hecker, Esq.

In my prior July column I reported on July 8, 2009 a motion by photographer Mannie Garcia to intervene in the action concerning the use of an illustration by poster artist Shepard Fairey which copied a photograph of then Presidential candidate Obama on posters, t-shirts and other material.

Garcia now claims in his court papers that in fact he was always the copyright owner of the images, that he was never an employee of AP, and that he never agreed to transfer his copyright to AP. Specifically Garcia now states that he never signed AP’s freelancer contract because he did not agree to its terms. The Court granted his motion to intervene.

AP has now responded to Garcia’s allegations in specific detail. AP claims, insofar as copyright ownership of the Obama photos, that Garcia was indeed an employee of AP. In support of its position, AP alleges in its cross-claim against Garcia that:

- In early March, 2006 Garcia became a freelance photographer for AP, at which time he signed a written agreement whereby he transferred to AP all copyrights to the assigned work.

- On March 29, 2006 Garcia submitted a written application for employment, seeking to be hired as an AP staff photographer on a full-time basis.

- In connection with this application, Garcia completed certain documentation that are only completed by employees, including that, if hired, he would be an employee-at-will.

- Garcia also completed other employee related documents.

- He also signed an agreement acknowledging that his employment as a staff photographer for AP would commence on April 3, 2006 at a stated salary which was to be based on a 40 hour work week.

- Garcia also became eligible to join the News Media Guild and became subject to the Guild’s collective bargaining agreement which covered AP employees (but not freelancers).

- Garcia was given photo assignments and listed as a staff photographer.

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29 Jul, 2009 | Posted by: psn




Obama Hope Poster Litigation -
Photographer Intervenes

By Joel Hecker, Esq.

In my prior column, May 7th, 2009, I discussed this litigation concerning the use of an illustration by poster artist Shepard Fairey which copied a photograph of then Presidential candidate Obama on posters, t-shirts and other material. At the time the article was written, AP claimed it was the owner of the photos in question as a work made for hire by the photographer Mannie Garcia. In support, AP claims Garcia was an employee of AP when the photographs were created. At the time the lawsuit was filed, Garcia himself had not made any claims and was not part of the legal process. Garcia was previously quoted as saying to the effect that he was not going to do anything to subvert Obama’s presidency.



Apparently, he has now changed his position. As a result, on July 8, 2009, Garcia filed a motion with the court to intervene in the action. He now claims that in fact he was always the copyright owner of the images, that he was never an employee of AP, and that he never agreed to transfer his copyright to AP. He therefore now contends that, unless he is permitted to join the lawsuit as a party, he will be prejudiced whatever the outcome. He reasons that if Fairey wins Garcia will be denied his rights, while if AP wins then it will receive the copyright damages Garcia is entitled to. Specifically Garcia states that he never signed AP’s freelancer contract because he did not agree to its terms.

While it is unclear at this point whether Garcia or AP is the rightful copyright owner of the photograph in question (you will recall the parties cannot even agree which of the two underlying photographs credited by Garcia was the basis for the posters), it is clear both contend that Fairey’s actions constitute copyright infringement of such photograph.
His intervention makes it more complicated, however, since the court would need to first determine who has the right, or standing, under copyright law to pursue the case in the first place. The case is now in the discovery stage and a status conference is presently scheduled before the presiding judge in the Fall 2009.


Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com. © Joel L. Hecker, 2009



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27 May, 2009 | Posted by: psn






Are Your Copyrights Protected?


by Joel Hecker, Esq

A primary purpose of estate planning is to insure that assets and property are distributed as intended. Although laws vary from state to state, one general concept is universal: the more organized you are, the easier it is for your executor to marshal your assets and to make sure your wishes are honored in a timely fashion.

By the very nature of a professional photographer’s work and creative efforts, one of the most valuable assets is ownership of copyrights to his or her body of work. Although copyright is an “intellectual,” as opposed to a “physical”asset, for estate purposes, it is treated in the same way as any other asset.

Copyright is a bundle of “intellectual” property rights, which include the rights to reproduce, distribute, display, and perform the copyrighted work, and prepare derivative works based upon it. It does not include the original work which is a “physical” asset. Therefore, while you may identify your particular works as part of bequeaths in your Will, that does not necessarily include the rights under copyright to the works, which are separate assets.

Accordingly, for example, you may leave original prints, chromes or digital files to one person, and the right to make reproductions and commercially exploit the photos (copyright rights) to someone else. Moreover, the right to receive royalties on your work usually flows from copyright ownership and not from ownership of the original.


Take a moment to think about whether you know how many copyrights you own and which, if any, copyrights are registered with the Copyright Office in Washington D.C. If you cannot identify what your copyrights are, or the location of the original negatives, chromes and/or digital files from which reproductions can be made, think of the problems you will be causing your executor!

GET ORGANIZED


The simple answer is to get organized. This should encompass all relevant information, including a list of all your intellectual property, either by individual images, or category of work, or by job or assignment. Information about subject matter, date of creation, date of first publication, or registration information with the Copyright Office, all known uses of the images, all payments received, if it is subject to any licenses (including stock photo agreements), what royalties are due and when should be made available. The physical location of the work should also be accessible. Any appraisal or valuation that you have (or might want to obtain) would be very helpful.

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06 May, 2009 | Posted by: psn






Obama Hope Poster

Is it Copyright Infringement?

By Joel Hecker, Esq.


A new case in the United States District Court of New York, Shepard Fairey v. The Associated Press, may be the basis for an important “transformative” analysis of fair use. It concerns Fairey’s creation of an illustration of President Obama which was used in a series of posters, the most widely known of which is the “Hope Poster.”

Shepard Fairey is a 39-year-old artist who lives and works in Los Angeles. He copies part or all of existing photographs or artwork, a practice he calls “visual reference.” Photographers consider this “appropriation art” to be blatant copyright infringement.

AP, a not-for-profit membership cooperative corporation, is one of the largest news organizations in the world.

The Underlying Photo

One unusual aspect of the case is that the underlying photo used by Fairey is in dispute. Mannie Garcia, a professional photographer employed by AP, created a series of images at a 2006 event about Darfur held at the National Press Club. The actor George Clooney was sitting beside the then Senator Obama.
Fairey claims he used a cropped version of a photo of both Clooney and Obama. AP claims the underlying photo, also taken by Garcia, is only of Obama and, when overlayed onto Fairey’s illustration, shows the two are exactly the same.

The Posters

Fairey claims his illustration and posters were part of a series of iconic works he created to support the presidential candidacy of Obama.
The first one, Obama Progress, is identified by Fairey as an abstract graphic rendition of Obama gazing up and to the viewer’s right, colored in a palette of red, white and blue, with the word “Progress” in capital letters beneath the image of Obama. Fairey then created a second poster with his same illustration, which became known as Obama Hope since the word “Hope” replaced “Progress.” By the summer of 2008, Obama Hope had become, according to Fairey, a “ubiquitous symbol” of Obama’s candidacy and pervasive presence across America.

The third poster, entitled “Obama Hope Mural,” was created for an art exhibition held in Denver during the Democratic National Convention, in conjunction with Obama’s nomination for President. The fourth poster, Be The Change, has the Obama illustration flanked by images of the United States Capital Building and White House with a cheering crowd beneath the illustration.
Immediately following the election, Fairey created a fifth image, entitled Yes We Did with the Obama illustration in the upper center with additional visual elements. Finally, on January 17, 2009, a large-format, hand stenciled collage incorporating the Hope poster with other visual material, was unveiled at the Smithsonian Institute’s National Portrait Gallery in Washington, D.C.
Fairey’s Complaint
The lawsuit seeks a declaratory judgment that Fairey’s illustration of Obama and posters incorporating this illustration constitute fair use under the Copyright Act and do not infringe any AP copyright.
Fairey claims that he used the Garcia photo of Obama and Clooney solely as a visual reference, which transformed the literal depiction contained in the photo into a “stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph.”

Fairey further claims that th e original photo previously published depicted a factual occurrence, while his image was fictional and highly creative, that only a portion of the photo was used (with Clooney cropped out), and therefore the amount of the taking was reasonable.
Finally, Fairey claims use of the photo in the illustration imposed no significant or recognizable harm to the Garcia photo, or any market for, or derivative of, it. In fact, to the contrary, Fairey claims the posters have greatly enhanced the value of the photo.

AP’s Counterclaims

On March 11, 2009 AP filed its answer to the complaint, as well as counterclaims for direct and contributory copyright infringement. The gist of the counterclaims is that Fairey was fully aware that the Garcia photo used was copyrighted, and that Fairey copied all the distinctive and unequivocally recognizable elements of the photo in their entire detail (including the heart and essence of it), as well as its patriotic theme.
AP also alleges that Fairey’s profits on his illustrations already exceed $400,000, with a great deal more expected. AP further claims that Fairey has a prior history of wilful disregard for the property rights of others and cites numerous instances of his misappropriating works from other artists. These acts and the failure to give any attribution to the original creator, says AP, constitute a consistent pattern of copyright infringement by Fairey and proves Fairey was acting in “bad faith.”
AP compares these claims to Fairey’s highly sophisticated understanding of licensing and a highly protective copyright protection program of his copyright and trademarks, as well as his work. AP alleges specific examples to support this contention.
AP also contends that Fairey’s copyright registration certificates for his various Obama works constitute a fraud upon the Copyright Office, since he did not acknowledge that the illustrations are derived from the Garcia pre-existing work. Therefore, according to AP, these registrations should be cancelled.

Summary
This case has the potential for far reaching importance in interpreting the concept of fair use in copyright as it applies to appropriation art. At the moment, it is unclear how far an artist can go when using copyrighted work in the name of art without it being considered to be copyright infringement.

Most interested photographers believe that this direct taking of Garcia’s photo constitutes copyright infringement, and that this is not even a close call. In any event the case will be watched closely by the photography and artistic community because it may determine how far someone who is, or claims to be, an artist can use an existing copyrighted photograph as reference for new art.

© Joel L. Hecker, 2009

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com.

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17 Feb, 2009 | Posted by: psn




Paris Fashion Show Photos . . .

- FAIR USE OR NOT?

by Joel Hecker, Esq


A recent decision on the fair use issue offers an interesting window into how a court analyzes a potential fair use defense. The plaintiffs, in SARL Louis Feraud International v. Viewfinder, Inc., are French corporations which design and market high-fashion clothing. Defendant Viewfinder and its two principals who are professional photographers, operate an internet fashion magazine called FirstView.com. Plaintiffs exhibit their new fashion clothing as part of yearly fashion shows in Paris under the auspices of the French Federation of Fashion.

Viewfinder has a website on which it posts photographs of the current season’s fashions. This may be viewed only by purchasing a subscription. However, photographs of past collections are available for free. It also sells photographs of runway shows to various other publications, but does not sell clothing or designs. Plaintiffs, on the other hand, sell clothing but not photographs.

Plaintiffs obtained a default judgment in a French court and brought an action in the United States District Court in New York to enforce it. The District Court initially dismissed the action, finding that enforcing the French judgment would violate the First Amendment protection available under the fair use doctrine.

That decision, however, was reversed on appeal and the case sent back to see if there was sufficient evidence to determine whether fair use applied, and if so, whether French law had an equivalent protection to our fair use.

Plaintiffs thereafter moved for summary judgment on the belief that fair use could not possible apply. The District Court analyzed the fair use factors, as follows:

First Fair Use Factor. (The purpose and character of the use)

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27 Jan, 2009 | Posted by: psn





Postage Stamp Photo

is Fair Use...

by Joel Hecker,Esq.

A new case arising out of the United States Postal Service’s issuance of a 37 cent postage stamp commemorating the 50th anniversary of the armistice of the Korean War, has resulted in a decision upholding the claimed infringement to be a fair use. The case is Gaylord v. United States (United States Court of Federal Claims, decision dated December 16, 2008).

The stamp features a photograph of 14 of the 19 stainless steel soldier sculptures that are part of the Korean War Veterans Memorial located on the National Mall in Washington D.C.

Plaintiff Gaylord sculpted these 19 soldiers in formation, known as “The Column” and obtained registrations for it from the Copyright Office. He therefore was acknowledged as the copyright owner of the sculpture.

An amateur photographer, John Alli, created a photograph of the sculpture as a retirement gift for his father, who served in the Marine Corps in Korea.

In 2002, the Postal Service licensed use of this photograph for $1,500 and incorporated it into the stamp image. The photographer did not seek Gaylord’s permission but did tell the Postal Service that it would need the permission of the owner of the copyright to the sculpture as well as his permission to use his photograph.

The Postal Service, however, did not seek Gaylord’s permission to depict his sculptures on the stamp. The Postal Service, produced approximately 86.8 million stamps between July 27, 2003 and March 31, 2005. Gaylord then sued the Postal Service for copyright infringement.

The court, after determining that Gaylord owned a valid copyright in the sculpture and that there was no dispute that the photographer had access to it when creating his photograph, found that the stamp was substantially similar to the sculpture. The court then addressed the fair use defense by analyzing the four fair use factors.

First Fair Use Factor :The purpose and character of the use, including whether the use is of a commercial nature.

The court held that the use added something new to the sculpture, with a further purpose or different character, and thereby altered the original work with new expression, meaning or message. Therefore, it was transformative since the stamp provided a different expressive character.

The court said the sculpture was a three dimensional sculptural snapshot of a group of soldiers on an undefined mission during the Korean War, captured as a single moment in time. The photograph transformed this expression and message by creating a surrealistic environment, with snow and subdued lighting where the viewer is left unsure whether he is viewing a photograph of statues or actual human beings. The Postal Service additionally altered the expression by making the color of the photograph even grayer, creating a nearly monochromatic image. The court therefore found that the first factor of the fair use analysis weighed heavily in favor of fair use.

Second Fair Use Factor: The nature of the copyrighted work.

The second fair use factor carried little weight under the fair use analysis because the stamp was not created in an effort to exploit the virtues of the sculpture.

Want to register as a member?
http://photosource.com/psn-article/stamp.html



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14 Jan, 2009 | Posted by: psn



NOT FOR MINORS. Who Should Sign the Model Release? - Because minors can later disaffirm (void) contracts, you need the consent of a minor's parent or guardian
before using the minor's name or likeness for commercial purposes.
http://rising.blackstar.com/who-should-sign-the-model-release.html


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23 Dec, 2008 | Posted by: psn





When the Defendent declares Bankruptcy . . .


Wilful Copyright

Infringement


By Joel Hecker, Esq.



We all know that these are uncertain economic times. Photographers may be faced with clients, or others, who fail to pay outstanding bills or who just use photographs without consent.

When the photographer pursues the matter, there is a good possibility that some of these entities will wind up in Bankruptcy Court. A recent case has clarified when the debtor will not be discharged in Bankruptcy Court when the photographer has a claim for wilful copyright infringement.

- - - - - - - - - - - - - - - - - - - - - - -

“To prove wilful infringement, the Plaintiff must
prove by a preponderance of the evidence that the
Defendants knew that they were infringing the
Plaintiff’s copyrights or that they acted with reckless
disregard as to whether they were doing so…”
- - - - - - - - - - - - - - - - - - - - - - -


The case, In the Matter Barboza, was decided by the United States Court of Appeals for the Ninth Circuit on appeal. The case involved the distribution of Spanish language films. After a trial, a jury found the defendants guilty of wilful copyright infringement, awarding statutory damages of $75,000 for each of ten videos, plus costs and attorney’s fees, in all totaling $893,077.

The jury returned a guilty verdict after the judge instructed the jury that the following was the test to determine liability for wilful copyright infringement:

IT PAYS TO BE DUMB

“To prove wilful infringement, the Plaintiff must prove by a preponderance of the evidence that the Defendants knew that they were infringing the Plaintiff’s copyrights or that they acted with reckless disregard as to whether they were doing so. If you conclude that the Defendants were reasonable and in good faith believed that they were not infringing the Plaintiff’s copyrights, then you may not find that they wilfully infringed those copyrights.”

This instruction is a customary one in a copyright infringement law suit. The Plaintiff must prove either that the defendant knew that they were infringing, or that the defendant acted with reckless disregard as to whether they were doing so. The jury in this case did not indicate which of the two grounds led to its verdict since either ground was sufficient.

After judgment was entered, the defendant filed for bankruptcy. The plaintiffs requested that the bankruptcy court have the judgment declared nondischargeable in bankruptcy since they claimed it was a debt resulting from a “wilful and malicious” injury under the statute.

The Circuit Court of Appeals analyzed the difference between the tests to determine wilful copyright infringement under the Copyright Act and for nondischargeability under the Bankruptcy Code. Under the Copyright Act, the test is the one set forth above (knowing acts or wilful disregard). The Bankruptcy Code test, however, is more stringent. It prohibits discharge of a debt for “wilful and malicious injury by the debtor.” Accordingly, there must be a finding of both wilfulness and “malicious injury.”

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http://photosource.com/psn-article/wilful.html






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29 Oct, 2008 | Posted by: psn





Orphan Works . . .

Is Your Copyright


Still Safe?



On September 29, 2008, the U.S. Senate passed its version of an Orphan Works bill, S. 2913, entitled the “Shawn Bentley Orphan Works Act of 2008.” This occurred by unanimous consent through a procedure called hotlining, which is utilized to move “non-controversial” legislation quickly through the Senate. Obviously the Senate seems to have a different definition of “non-controversial”given the extensive vocal opposition to it by a number of photography copyright owners and organizations.

- - - - - - - - - - - - - - - - - - - - - - - -


“If neither the Senate bill nor the House version or some other
bill on Orphan Work becomes law in the current Congress, it
undoubtedly will be brought up again in the spring.


- - - - - - - - - - - - - - - - - - - - - - - - -




The final bill is similar to the one which had previously been debated in the Senate, with the addition of certain concessions made to favor copyright holders. The bill now contains a method to determine what would constitute a “diligent effort,” in connection with the required search to find a copyright owner. A search will now qualify when a diligent effort is made “that is reasonable under the circumstances to locate the owner of the infringed copyright prior to, and at a time reasonably proximate to, the infringement.”

This diligent effort requires, at a minimum, the following:

============================================
• A search of the Copyright Office records available to the public through the Internet, which are relevant to identifying and locating copyright owners, provided there is sufficient identifying information on which to construct a search;

• A search of reasonably available sources of copyright authorship and ownership information and, where appropriate, licensor information;

• Use of appropriate technology tools, printed publications, and where reasonable, internal or external expert assistance;

• Use of appropriate databases, including databases that are available to the public through the Internet.
============================================

The diligent efforts would also require “any actions that are reasonable and appropriate under the facts relevant to the search, including actions based on facts known at the start of the search and facts uncovered during the search, and including a review as appropriate of Copyright Office records not available to the public through the Internet that are reasonably likely to be useful in identifying and locating the copyright owner.”

The Copyright Office will still be required to draft recommended practices for conducting these searches. The bill also encourages the creation of private searchable registries through databases to be created with the Copyright Office to certify at least two such databases. The Act will become effective, if it becomes law in its present form, 30 days after such certification, or January 1, 2013, whichever comes first.

- - - - - - - - - - - - - - - - - - - -

Obviously the Senate seems to have a different
definition of “non-controversial”given the extensive
vocal opposition to it by a number of photography
copyright owners and organizations…

- - - - - - - - - - - - - - - - - - - - - -


What the House of Representatives will do is uncertain at this point. As of this writing, the members of House are either campaigning for reelection or otherwise occupying themselves on other matters, including those pertaining to the financial crisis.

The pending House bill, which has yet to be acted upon, was viewed by photographers as being more favorable to copyright owners than the version passed by the Senate since the House version would require an infringer to file a notice with the Copyright Office when the infringer intended to use what would be considered to be an Orphan Work.

If neither the Senate bill nor the House version or some other bill on Orphan Work becomes law in the current Congress, it undoubtedly will be brought up again in the spring. Given the broad support for the concept of an Orphan Works bill, it will probably become law in some form.

The various photography and artist organizations, such as the Advertising Photographers of America, the American Society of Media Photographers, and the Graphic Artists Guild, have encouraged their members to contact their House Representatives to push for retention of the additional requirement of filing with the Copyright Office.


Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com.




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08 Oct, 2008 | Posted by: psn






Re-publication Permits


Privacy Suit to Proceed



Although the language of each state statute may vary, the use of a
person’s name, portrait or picture in a photograph cannot be used for
advertising, commercial or trade purposes, without the person’s written
consent.

This is called the Right to Privacy. The time to bring a lawsuit for
invasion of the Right to Privacy is one year from the first publication
in New York and most other states, but is subject to what is called the
single publication rule. Under this rule, the statute of limitations
begins to run on the date the material at issue is first published or
used. Accordingly, subsequent distributions or uses of the images does
not constitute a separate publication or continuing wrong which would
extend to the date the initial claim accrued.

The purpose of this rule is to avoid an endless tolling of the
limitations statute. For example, a distribution of a work to a library
would be the initial date for statute of limitations purposes, and that
initial date would not be extended each time the library loaned the work
out.
THE RE-PUBLICATION RULE
There is an exception to this single publication rule. This occurs where
there is a republication, which happens when there is a separate
publication which is not merely a delayed circulation of the original
edition. The justification for this exception is that the subsequent
publication is extended to and actually reaches a new audience. Thus,
where the republication is in format intended to reach a new audience,
the statute of limitations will start over for purposes of the new
publication only.

A recent decision in New York Supreme Court dealt with this issue and
illustrates how this principal works n the marketplace.

The case concerned use of a photograph of the plaintiff playing football
in 1999. A copy of the photograph was first installed in defendant’s
sports clubs shortly thereafter and remains in such use today.

At some time later on, the image appeared on defendant’website.
Plaintiff then brought his lawsuit for invasion of privacy based upon the
subsequent website use. The defendant moved to dismiss the case on the
grounds that the one year statute of limitations had already expired.
The plaintiff conceded that his claim is time barred with respect to the
installation of the photo at defendant’club. However, he argued
that the website use was a republication and the court agreed.

The Court reasoned that the audience at defendant’club is
presumably intended primarily for the entertainment of the limited number
of existing members. On the other hand, the website use is presumably
directed at a far wider audience primarily comprised of non-members whom
the defendant is seeking to attract as new members.

Accordingly, unless the defendant could establish during the litigation
that the website use also dated back more than one year from the filing
of the complaint, it will be held responsible for invading the privacy of
plaintiff on the republication uses.


Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com.


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01 Oct, 2008 | Posted by: psn




PHOTOS SHOW INFRACTIONS Local schools may soon view digital photos posted online as evidence of violation of student athletic codes of conduct. Certain photos online could mean trouble for school athletes. Since the explosion in popularity of Internet social networking Web sites, such as MySpace.com and Facebook.com, some students have posted photos of themselves or other students breaking the law and/or school rules, prompting the school districts in the Glove Cities to take action.
"The gist of it is we would consider using [those digital photos] posted on MySpace as well as someone seeing them or reporting them [to initiate disciplinary action]," Semione said.
http://www.dailygazette.com/news/2008/sep/27/0927_athletescode/



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23 Sep, 2008 | Posted by: psn



PHOTOS HELP INVESTIGATIONS. There weren't any black Hummers or men in $5,000 suits with $500 sunglasses. But the scene in Trumann last week of police officers dusting for prints and taking pictures of a mock crime scene looked like something out of the TV police drama "CSI." Officers received hands on training lifting fingerprints and taking pictures of a mock crime scene using digital photography.
"When we go to a crime scene the biggest thing we are after are photographs and fingerprints," Blagg said.
http://www.trumanndemocrat.com/story/1462083.html


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27 Aug, 2008 | Posted by: psn




Wedding Photo Contract – Shared Responsibilities?


When A Shoot
Goes Wrong


Advance Notes: It’s no fun defending a lawsuit, even if you win.
Here’s a story to tack onto your bulletin board as a reminder.

By Joel Hecker, Esq.

Contracts should obviously be as inclusive as possible to memorialize the understanding between the parties, to anticipate and resolve potential problem areas, and generally to eliminate ambiguous issues. Unfortunately, the parties often neglect to do the obvious, and face the consequences when things go wrong.

A recent case in New York, brought by an unhappy prospective bride against a wedding photographer, is illustrative of what can go wrong when key terms are not addressed and there is a lack of communication on the job.
The parties entered into a written contract for the photographer to photograph the wedding at a specific place on a specified date from 10:30 a.m. to 5:00 p.m. for an agreed price. The photographer was also to provide proofs and a CD of the proofs, three 8 x10 photos with special effects, and prepare a wedding album consisting of twenty-four 8 x 10 photo pages. In short, a standard package.
On the day of the wedding, the photographer showed up, but left after a half hour, leaving another photographer from his studio to take the remaining pictures. In all, 355 pictures were taken during the wedding and reception. The bride claimed that many of the images were unprofessional, of poor quality, amateurish in positioning and not the classic style expected. In addition, there were no individual or group photos where feet were included in the picture; no full body shots of the bride and groom, and no shots of the groom with the bridal party. The bride also claimed that the photographer’s sample wedding albums used in his sales pitch showed the type of pictures the wedding couple wanted but did not get.
The photographer claimed the contract provided that “photographers will use their own creative judgment unless otherwise told in writing by client.” Apparently no such preferences wanted by the bride were expressed, nor did the contract specify a particular individual photographer or number of photos to be taken. As a result of these gaps in the contract language, litigation ensued.
The Court, in ruling against the bride and for the photographer, emphasized that no matter how much skill and care is exercised by properly equipped photographers, certain things cannot be guaranteed. This is because no photographer will always be in the right place at the right time and the subjects will not always be where a photographer or bride wants them to be. At any wedding, he recognized, there are a multitude of choices for a photographer to make in terms of selecting the pictures to take.
MAKE IT CLEAR

Critically important to the Court’s determination was the belief that it is incumbent upon the bride to communicate clearly to the photographer what shots or types of shots to take. In this respect, said the Court, a bride or groom has responsibilities at the wedding beyond saying “I do” and enjoying themselves. These responsibilities include awareness of what the photographer is doing, pointing out important subjects and generally communicating specific needs if not already included in the written contract.

Since the contract did not contain express terms as to the photographer’s required performance (i.e. what shots to be taken) the photographer was bound to the more generic legal standard of performing in a skillful and workmanlike manner.

The Court, after reviewing the 355 photos taken, found that although some were poorly focused or framed or generally worthless, the majority were clear and professional, adequately capturing the “good time had by the guests” and “the significance of the moment.” As to the complaint concerning the selection of shots, the Court ruled for the photographer, saying that, although stylistic choices were made, such choices did not constitute a deviation from the reasonable standards expected of a professional photographer.

Accordingly, the photographer prevailed although he had legal fees to pay and unfavorable publicity. The moral of the story is to have clear, unambiguous contracts and to continuously communicate with your clients. Making clients happy is certainly a better business model than defending lawsuits!


Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com.



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27 Aug, 2008 | Posted by: psn





BROOKS DEFENDS ITS ROLE. Brooks Institute refocuses on better image. The school of photography continues court battle to clean tarnished reputation. The Brooks Institute emerged victorious early this year over charges that prospective students were attracted to enrolling there with guarantees of gainful employment post-graduation. Now, officials at the longtime local photography college are hoping to replicate that same success as they contend with a pair of legal cases alleging similar complaints. "They claim they were misled," he said of the plaintiffs, adding, "We certainly deny making any misrepresentation to students." Both cases are nearly identical, Richter said, accusing the school of supposedly convincing students to attend the three-year institute while overselling the promised high-salaried jobs. An unspecified amount of monetary damages, legal fees and back tuition is being sought, based on the charges.
http://www.vcreporter.com/cms/story/detail/?id=6231



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20 Aug, 2008 | Posted by: psn


OVER-CAUTIOUS SOCIETY. -- Has our increasingly paranoid society declared war on the humble 'weekend snapper'? (UK) An amateur photographer is chased by the police after taking pictures on the seafront; another man is frog marched away when using his camera in a town centre. Since when did carrying a camera in public provoke so much suspicion and hostility? http://www.telegraph.co.uk/arts/main.jhtml?xml=/arts/2008/08/17/sv_photographers.xml


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13 Aug, 2008 | Posted by: psn






ALL IN THE FAMILY.
Photographer prosecuted for fairy 'child porn'. (UK) A "NAIVE" photographer employed by parents to take pictures of their young daughters to turn into images of fairies has been prosecuted because the photos fell under the definition of child porn. Under the legislation, the images of the two girls - aged 10 and 12 - were classed as level one child pornography, despite the fact their parents had asked for the pictures to be taken and were even present at photo shoots.
http://www.yorkshirepost.co.uk/highlights/Photographer-prosecuted-for-fairy-child.4359539.jp


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23 Jul, 2008 | Posted by: psn



MOVIN’ ALONG Orphan Works: Some important Q&A’s.
http://photobusinessforum.blogspot.com/2008/07/orphan-works-faqs.html

YES I CAN! Amateur and professional photographers in the UK are facing an up-hill struggle when trying to take photographs in public places, after misinformation has been taken as fact. As part of its campaign for photographers' rights, every UK photographer member is being issued with the BFP "Blue Card". This card asserts to people the photographers' rights to take pictures in public places.
http://www.huliq.com/64310/bfp-campaign-photographers



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16 Jul, 2008 | Posted by: psn



NEW RULES -- NYC sets formal film permit rules. - Filmmakers and photographers who shoot on New York City's famed streets and sidewalks now have a clear set of rules dictating when they must obtain permits, after years of relying on loose guidelines that civil liberties advocates said were too vague. http://www.amny.com/news/local/ny-bc-ny--filmpermitrules0714jul14,0,5846784.story?track=rss

CELEBRITY PHOTOS Brown Estate In A 'Cold Sweat' Over Image Use - The case concerns whether the licensing a photo of a celebrity is considered a commercial use in every situation. If the case is decided in favor of Brown's estate, it could open a flood of legal challenges against anybody who licenses celebrity photos, even for editorial use.
http://www.npr.org/templates/story/story.php?storyId=92433895


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26 Jun, 2008 | Posted by: psn



Yes, WE ARE SERIOUS - - Photographer Gets $12 Million Verdict!!! - Liz
Ordonez-Dawes, an accomplished architectural and interior design photographer,
recently was awarded more than $12 million dollars for copyright infringement
of seven photographs. http://www.photoattorney.com/2008/06/photographer-gets-12-million-verdict.html
TAKEAWAY. If the award is only realized.

SUBMIT YOUR OPINION - - Petition against US Orphan Works Act - There is a new petition against the proposed Orphan Works Act 2008, which is able to be signed by anyone anywhere in the world. The organisers are aiming for 1 million signatures.
http://copyrightaction.com/blog/petition-against-us-orphan-works-act
TAKEAWAY: Let them know what you think. Check out www.photorights.org


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18 Jun, 2008 | Posted by: psn



A BALANCE? – The Canadian Photographers Coalition (CPC)
welcomes copyright reform legislation - These amendments allow Canadian small
business photographers the opportunity to generate additional revenues for their
commercial work. At the same time, they strike a balance by allowing consumers
the use of commissioned personal photographs for private non-commercial purposes,"
added Brian Boyle, Coalition Co-chair.

http://www.globeinvestor.com/servlet/story/CNW.20080613.C3817/GIStory/


LOTSA LUCK! – Copyright law could result in police state:
critics. The federal government has introduced a controversial bill it says
balances the rights of copyright holders and consumers — but it opens
millions of Canadians to huge lawsuits, prompting critics to warn it will create
a "police state."

http://www.cbc.ca/technology/story/2008/06/12/tech-copyright.html


THEY’RE WATCHING. – The NYPD Harasses a Photographer
at Coney Island. Manhattan commercial photographer Simon Lund loves Coney Island
so much that he treks out there 10 to 20 times each summer to take pictures.
But it was only on his latest venture that Lund encountered something he'd never
experienced in all his trips there over the years: an unwanted photo editor
from the NYPD. As if he were in a police state, Lund was intimidated by a cop
into giving up his film, even though he was doing nothing wrong and wasn't formally
accused of anything.

http://www1.villagevoice.com/news/0824,shoot-first-hand-over-film-later,464895,2.html


 



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11 Jun, 2008 | Posted by: psn








ARE YOU UNWELCOME? -- He asks, "What is it with photographers
these days? Are they really all terrorists, or does everyone just think they
are? Since 9/11, there has been an increasing war on photography. Photographers
have been harassed, questioned, detained, arrested or worse, and declared to
be unwelcome. We've been repeatedly told to watch out for photographers. Clearly
any terrorist is going to first photograph his target, so vigilance is required.
Except that it's nonsense. The 9/11 terrorists didn't photograph anything. http://www.schneier.com/blog/archives/2008/06/the_war_on_phot.html
Related: http://wvrblog.blogspot.com/2008/06/sometimes-camera-is-just-camera.html
http://www.schneier.com/blog/archives/2008/06/more_on_airplan.html


TAKEAWAY: If you dress more like a tourist than a journalist,
you'll get less hassle.


YES, YOU CAN. -- Seattle police department issues new policy
regarding photographers. It took an unlawful arrest and an embarrassing $8,000
settlement, but the Seattle Police Department has issued a new policy clarifying
that citizens are within their rights to document police activity, as long as
they are not interfering with the investigation. http://carlosmiller.com/2008/06/04/seattle-police-department-issues-new-policy-regarding-photographers/


TAKEAWAY - Like the Rodney King (L.A.) case. Yes, you
can film it.



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