Tag: Phoenix copyright lawyer

  • ChatGPT: What’s in the Fine Print

    Everyone seems to be going crazy about ChatGPT – using it to write everything from social media posts to books, worry about if kids are using it to cheat at school, and wondering if this is our new robot overlord that will ultimately replace all professional writers.

    Ok, maybe I’m exaggerating with that last one.

    But how many people have read the terms of service and its privacy policy?

    I have.  😉

    Photo by Barney Moss (Creative Commons)

    OpenAI is Winning the Internet

    Did you know that the same company that created ChatGPT also created DALL-E? I’m not usually one who makes predictions, but so far, OpenAI is winning this year. They are creating the standard against which other AI will be compared.

    As long as they don’t fuck it up, OpenAI is going to kick ass this year.

    OpenAI’s terms and privacy policy are the same for all its services, including ChatGPT and DALL-E, so plan accordingly.

    What Can’t You Make with ChatGPT

    OpenAI has a policy that you can’t use its services to create content related to:

    • Political campaigns
    • Adult content
    • Spam
    • Hateful content
    • Content that incites violence
    • Uses that may cause social harm

    Hat tip to OpenAI for acting with integrity from the start. I understand why it doesn’t want to be connected with these activities. Use AI for good not evil.

    Yes, some of my clients are porn companies. I see nothing wrong with consenting adults creating adult content. (Yes, that means sometimes I get paid to look at porn.) However, I understand why OpenAI made a blanket rule against using AI to make adult content because you know some sicko will use it to try to make virtual kiddie porn. It’s just easier to prohibit the entire category.

    Photo by James Lee (Creative Commons)

    You Can’t Claim You Made the AI-Generated Content

    The terms of services clear say that when you use OpenAI’s services, you cannot “represent that output from the Services was human-generated when it is not.”

    They obviously wanted to get ahead of suspected problems like students using ChatGPT to do their homework. That also means if you’re a marketing agency, you can’t claim the content created by ChatGPT was made by your staff.

    Previously, I predicted that “handcrafted artisanal content” would become a real label in content marketing. I think this could be the beginning of it.

    Photo by Torley (Creative Commons)

    You Own the IP – or Do You?

    The terms say “OpenAI hereby assigns to you all its right, title and interest in and to Output.” This might make you think that you’ll own the copyright in everything ChatGPT creates for you.

    But that’s not true.

    It’s well-established that copyright only exist in works created by humans. The output from AI-software can be copyrightable in only two situations:

    1. The software code was written by a human and it original enough to be by copyright. If this is true, then the output would be a derivative work of the software code.
    2. What you input into the software was protected by copyright, and therefore, the output is a derivative work of the input. If the input was something you owned the copyright in, you don’t need OpenAI’s assignment to own the rights in the output.

    However, if the input is merely facts or ideas (no copyright) and there’s no copyright in the software code, there’s no copyright in the output. OpenAI can assign you the rights in the output, but those rights won’t include copyright.

    Photo by Levork (Creative Commons)

    Warning: Two Users May Get the Same Output

    Heads up: the OpenAI’s terms say its “Services may generate the same or similar output for OpenAI or a third party.”

    So, there’s a risk that two users could get the same output from ChatGPT, think they own the copyright in it, and then accuse each other of copyright infringement when neither one owned a copyright in the output to begin with.

    That’s also another strike against ChatGPT – if you ask it to create the ordinary, the output isn’t likely to differentiate your brand from your competition.

    And by the way, the terms also say that there’s no guarantee that the output from their software doesn’t infringe on another’s rights. (If you outsource your content creation to a third party, double check your contracts to make sure that if you’re accused of wrongdoing for what they created, that they’ll be responsible for your damages and attorneys’ fees.)

    OpenAI Can Use Your Content Too

    Did you also notice that the terms say OpenAI may get the same output as what it creates for you?

    They also say that OpenAI can use your input and output from its software to develop and improve its services.  

    Photo by Lorie Shaull (Creative Commons)

    Don’t be a Dick to OpenAI

    They already thought of this – you’re not allowed to create multiple accounts to take advantage of their free tier of services.

    If you want more than that, pay for it.

    Additionally, you’re not allowed to use their services in any way that infringes, misappropriates, or violates anyone’s rights.  

    Photo by Steve Spezz (Creative Commons)

    You Have to Protect OpenAI

    Just I said to double check your contract with your third-party creators, the same verbiage is in the OpenAI terms. You have to indemnify OpenAI against any “claims, losses, and expenses (including attorneys’ fees) arising from” your use of their services.

    This is actually a standard term I include in a lot of my clients’ contracts.

    Photo by Steven Depolo (Creative Commons)

    Cool Points to OpenAI

    Whenever you read a contract (terms of service are a contract), remember that whichever side wrote it, did so to protect their interests, not the other guy.

    However, if you are constrained to take OpenAI to arbitration to resolve a dispute, but you can’t pay your half of the arbitration fees, “OpenAI will pay them for you.”

    That’s a classy move. In most terms of service, including the ones I write for clients, if you can’t pay your half of the arbitration fees, you’re screwed and you have no other recourse.

    The terms also say, “OpenAI will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.”

    In many contract disputes, it’s a given that the winner will ask for attorneys’ fees and costs. That’s often one of the upsides to bringing a breach of contract claim.

    Photo by DonkeyHotey (Creative Commons)

    What’s OpenAI Doing with Your Personal Info?

    I’m not sure what OpenAI is doing with my personal information, but they can use it for research and make it generally available. That’s what their privacy policy says.

    This is separate from their policy about how they use aggregate information, which they can also use for research.

    OpenAI’s privacy policy also says, “We do not and will not sell your Personal Information. (CA users).” I don’t know if this means that the personal information of people who aren’t California users might be sold, of if this is a policy that applies to everyone, but was included to comply with the California privacy law.

    As always, buyer beware. If you’re not paying for a product, there’s a good chance you are the product.

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    Ruth Carter

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  • No Copyright for AI-Generated Work

    Artificial intelligence by Wendelin Jacober

    During an evening event at Content Marketing World this year, I was talking with my fellow speakers, and I basically held court to field their questions about how copyright applies to content that’s created with artificial intelligence (AI). This led to an invitation from the brilliant Christopher Penn to do a more in-depth interview about this topic as a Fire Side Chat for Trust Insights.

    Only Humans Can Create Copyrightable Works

    This issue was largely settled by the infamous Monkey Selfie case. Here’s what happened:

    Photographer David Slater was taking pictures in Tangkoko reserve in Indonesia. At one point, Naruto, a macaque monkey, picked up Slater’s camera and took several pictures, including the infamous selfie.

    Slater wanted to register the copyright in the photo, but People for the Ethical Treatment of Animals (PETA) sued Slater on behalf of Naruto, arguing that Naruto should own the copyright since he took the photo.

    The judge ruled that only humans can create copyright-protected works. Since Naruto took the photo, not the photographer, the photographer doesn’t own the copyright.

    In fact, no one owns the copyright in this photo. Since it was taken without a human author, there is no copyright in this selfie. Anyone can use it for any purpose without needing permission.

    Owning an AI Machine Does Not Give You a Copyright in the Machine’s Output

    This came up in a different copyright matter. Steven Thaler owned a machine that created the work entitled, “Entrance to Paradise.” When he tried to register the copyright for this work, he listed the machine, Creativity Machine, as the author, and himself as an author merely as the machine’s owner. The Copyright Office rejected the application, saying that owning the machine isn’t enough to make you an author of the machine’s output.

    If you write software code for an AI machine or product, there’s copyright protection for the code assuming it qualifies as an original work of authorship. However, even when software code is protected by copyright, the results of running the code are not necessarily protected by copyright. Remember there is no copyright protection for facts.

    Artificial Intelligence by Wendelin Jacober

    AI-Generated Content Might be a Derivative Work

    Whoever owns a copyright, get to control how that work is copied and distributed as well as what derivative works can be made from it.

    If you put someone else’s copyright-protected work into an AI machine or software, the resulting AI-generated content would be a derivative work of the original. If you do this without a license, then that’s likely copyright infringement.

    This is similar to using Google Translate to create unauthorized translations of someone else’s work.

    Could the Creator of AI Software be a Copyright Owner of the AI-Generated Work?

    I would not be surprised if this question is revisited by the court in the future.

    This question was touched on briefly in the Torah Soft case. An author wanted to use printouts from the Torah Soft software in their book and the software’s creator said this was an unauthorized use of his copyright in the software code.

    The judge ultimately held that that the code was not an original work of authorship, therefore, not copyrightable, and there was no copyright in the printouts because both the code and the printouts merely contained an unoriginal arrangement of facts. (This is also why there’s no copyright protection for phonebooks.)

    Might the outcome have been different if the input was not protected by copyright but the software code that created the output is? Maybe. This is an issue that hasn’t been taken up by the courts yet. The owner of the copyright in the code would have to prove that the output from the code is a derivative work.

    There’s also the question of whether the method used to create the output is original enough to be worthy of a patent. The court may have to consider whether this is a situation involving patent rights or copyright rights, or both.

    This is a gray area of the law. I don’t have high expectations that the owner of the code will successfully assert rights in the output of their code, but I think these types of questions will come up moving forward.

    What If Your Content is 100% AI-Generated?

    For now, AI-generated content isn’t worth consuming. To be blunt. It’s usually crap. Remember when AI studied pick up lines and was tasked with writing its own?

    However, if you’re using AI-generated content, or perhaps just AI-generated images, this comes with a risk. Assuming the AI-generated content is not a derivative work of someone else’s copyright protected work, it’s content that is not created by a human; therefore, cannot be protected by copyright and will automatically be in the public domain. Anyone, including your competition, could use it without penalty, at least from a copyright perspective.

    Otherwise, it’s imperative to keep a human substantially involved in creating your original works to retain its copyright and associated rights. For now, the best use of AI-generated content seems to be as a tool for exploring ideas for content and creating inconsequential images where you don’t care if anyone uses them.

    Will Certified Artisan Content Become a Real Thing?

    Chris and I joked that in the future, content made my humans will be labeled as “certified organic content” or “handcrafted artisanal content.”

    While we said this in jest, if the quality of AI-generated content improves, this could be how some content creators differentiate themselves from marketers who solely use AI without engaging a human to create original copyright-protected work(s) as part of the creation process.

    Want More?

    If you liked this post and want more, please subscribe to Ruth & Consequences. This fortnightly newsletter gives you exclusive content and a behind-the-scenes look into my life as a non-binary lawyer and entrepreneur and the lessons I learn as the Evil Genius behind Geek Law Firm. (When you own the business, you get to pick your own title.)

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    Ruth Carter

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  • Six Ways to Work on Your Photography Business While in Quarantine

    “Lens Cleaning” by The Preiser Project from Flickr (Creative Commons License)

    I cringe every time I see a post about photographers and models teaming up to shoot during the COVID-19 pandemic when they should be social distancing and staying home. The only photographers who should be out shooting these days are the ones who are documenting the pandemic.

    My business mentor taught me that when you’re not working in your business, you should be working on your business. Here are 6 ways you can work on your business while sheltering in place.

    Edit Your Images From TFP Shoots

    Models frequently complain that they rarely get images from open TFP shoots. They held up their end of the bargain. Now it’s time for you to do yours.

    Brainstorm and Research Future Projects and Collaborations

    Now is a good time to reach out to models you want to work with and research ideas for shoots you want to do when the Shelter In Place orders are lifted. There are lots of online groups where you can network with other photogs and models.

    Create Your LLC

    Are you still a sole proprietor? <shiver> Please fix that. No entrepreneur should be without a business entity for their company.

    In most states, you can create a business entity online. Look up your state’s Secretary of State Office or Corporation Commission.

    Review or Create Your Legal Documents

    Do you have templates for your client contracts, model releases, and copyright license? If not, now you have the time to create them. If you have them, can you remember the last time your reviewed them? If not, now would be a good time to do that. A lot of people are double checking that they have an effective force majeure provision in their agreements.

    If you want to respond to suspected copyright infringement by sending a cease and desist letter, now is the time to create an epic C&D template so you’re ready to lay the smack down on anyone who violates your rights.

    Update Your Website

    I bet it’s been a while since you did that. Make sure it accurately reflects your style and strengths. Even I’ve spent time while sheltering in place, updating this site.

    Clean Your Gear

    Now you have the time to clean your gear, including cleaning out gear you no longer use. Get your gear serviced if your camera shop is still open. Don’t forget to go through your memory cards and get rid of images you’ll never do anything with.

    If you can’t resist the urge to pick up a camera, please limit yourself to shooting still life, self-portraits, and/or shooting at home with members of your household. You can also work on your craft by re-editing older photos and taking online trainings on various techniques and skills.

    Lights Camera LawsuitTM

    There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. It’s 23 lessons, nearly 6 hours of legal information, with tons of information about contracts and copyright. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

    The course is $497, but until June 1, 2020, you can get it for 20% off with promo code thrive20.

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    Ruth Carter

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  • Share, Don’t Steal Content in Response to COVID-19

    Don’t Steal by Marguerite Elias from Flickr (Creative Commons License)

    During this pandemic, many companies are reaching out to their audience with message of reassurance, information about changes in their services, and ways their audience can help during this challenging time.

    My friend, Jessica Bay, walks dogs professionally as well as educates would-be professional dog walkers. She created a helpful graphic for her audience:

    A short while later, she noticed this in her social media feed:

    And later this one:

    She asked me if these were instances of copyright infringement. If someone is copying word-for-word or close to it, that raises the red flag for copyright infringement. There are definite similarities. I wouldn’t be surprised if one of these graphics were inspired by another’s post.

    Let’s assume that one of these graphics is a rip-off of another. It doesn’t make sense to me that someone would do that. In a niche market like dog walking and pet sitting, there’s no downside to sharing another’s graphic since the provider has to be in the physical vicinity of their clients. And for companies that educate would-be dog walkers, you should be confident enough in your work that your clients aren’t going to jump ship because of a graphic on social media.

    Conversely, there are only so many ways to convey the same information, and independent creation is a defense against copyright infringement. It’s possible that each of these three companies independently came up with the idea of creating a graphic about how their audience could support the dog walking/pet care industry while under quarantine or practicing social distancing.  

    My Two Cents

    Speaking as a lawyer and as an entrepreneur, if you see a graphic that would be helpful to your audience, share it. The best way you can add to the conversation would be to create your own content that builds on the original message, not just repeats it. (If you’re going to create content that repeats another’s message or general information, at least find an original way to do it.) If someone wanted to build on this, they could have created a graphic about the importance of maintaining normalcy in your pet’s life, which includes their walking schedule.

    If you get caught copying another’s content that’s so blatant that everyone will know that one is a rip-off of the other, it’s going to have an adverse impact. Instead of coming across has helpful, you risk being seen as lacking integrity and creativity.

    If You Get Caught Stealing Content

    If someone calls you out for potentially stealing content, and that’s what you did, just delete what you created, and don’t do it again. Saying it’s a “good message to spread” is not a valid excuse for copyright infringement.

    Ripping off a company’s graphic is on the same level as claiming another person’s poem as your own because you thought it was pretty. I think some people have a mental disconnect where they don’t think copying commercial speech is as bad as other infringing behavior. (Creating a graphic with your business logo on it, even though it is not a sales pitch, is commercial speech.)

    If someone has a good message to share, and their original content is shareable, then share it. That’s the best way to share the valuable message with your audience.

    Sharing Done Right

    I have seen this graphic all over social media over the last few days:

    Hat tip to The Counseling Teacher for creating such a helpful graphic. This graphic has the right message at the right time. Additionally, I haven’t seen any instances where sharing this graphic had a negative impact on anyone’s business.

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    Ruth Carter

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  • Lights Camera Lawsuit Pre-sale Starts Tomorrow!

    “Fireworks” by Epic Fireworks from Flickr (Creative Commons License)

    I’m nearly pee-my-pants excited because the pre-sale for my first online course, Lights Camera Lawsuit: The Legal Side of Professional Photography starts tomorrow! I’ve been working on this for well-over a year, and it’s so close to finally coming to market.

    I’ve spent the last week promoting the bejezus out of this, and I’m so pleased that the response has been so positive:

    Looks like a powerful product… I’m sure it will prove very popular!

    Super good idea, and i love the curriculum.

    Sound like a good (and much-needed) product.

    Just forwarded it to every photographer I know

    I will never stop being amazed at your entrepreneurial talents – what an amazing idea.  

    On the eve of the pre-sale, I wanted to respond to some of the questions I’ve received about this course.

    What inspired you to create this course?

    I’ve worked as a lawyer for eight years and a model for five. Basically, I’ve worked on both sides of the camera without having to touch one. I’ve seen there is a great need for quality information about photography law, and, unfortunately, most photographers can’t afford to hire a lawyer to help with all their legal needs. I’ve seen too many photographers make costly mistakes that were completely avoidable, particularly related to their contracts and copyright. I created this course to save other photographers from making the same mistakes.

    Why did you create a course instead of another type of product or event?

    There are three reasons. First, by creating a course, I can maximize the number of people I can help while keeping the price down.

    Second, the material in the course is evergreen (at least until the law changes), so I want it to be available when people are ready for it and looking for a reliable resource about photography law.

    Third, people who buy the course will be able to access it again and again, versus a live event which is a one-and-done deal. If there are changes to the law, I can update the lesson in question or add an additional lesson to the course, and everyone who had purchased it to date will get it at no additional cost.

    Does the course include contract templates?

    No, and here’s why – I’m not allowed to under the rules of my law license. However, the course includes the list of provisions I include in my contracts and lots of sample verbiage from real documents I’ve created for photographer clients.

    Where did the name Scarlet Maven come from?

    Scarlet Maven is the name of my superhero alter ego.

    Why did you have to create a separate business entity? What type did you create?

    I created a separate entity, Scarlet Maven, LLC, to make it clear that there will not be an attorney-client relationship with people who buy the course.

    On the advice of my accountant, I created an LLC for this business. LLCs are a great choice In Arizona, because they are basically set-it-and-forget-it entities. The state doesn’t require an annual report or fee. I don’t have to file anything with the state unless the company moves or dissolves.

    What aspects of the course did you outsource?

    Each lesson is going to be a screencast with a voiceover recording. I hired Elizabeth Fullerton at Boldfaced Design to create the templates for the PowerPoint slides.

    Additionally, because I have no artistic talent and only had a feeling about what I wanted my logo to look like, I hired Dina Miller at Square Peg Creative to create the logos for Scarlet Maven and Lights Camera Lawsuit.

    Both were money well spent. These ladies did a beautiful job.

    How have you been promoting the course?

    In addition to promoting the course through Scarlet Maven’s email list, I sent well over 500 individual emails to photographers, lawyers, and other professional creatives who might be interested in the course or who might know people who would be interested in the course.

    The promotion won’t end with the pre-sale. I expect Lights Camera Lawsuit will be a course I sell for years to come, so I’ll continue to look for opportunity to reach more people about it.

    What parts of this process were fun?

    Creating the outline for the course and each of the lessons was fun. So has been talking with photographers about their needs and what they hoped to get out of this.

    What new skills did you have to learn?

    This venture gave me the opportunity to learn some new skills. This was the first time I ever created a website with Squarespace. It’s quite different than working with WordPress, but not too hard once you learn the basics.

    This is my first online course, and I’m using Teachery for it. I was so glad and relieved to learn that this platform is super easy to use. I’ve also taken a number of courses that platform, so I know how easy it is for users as well.

    What challenges did you face?

    Scarlet Maven is my side business, so one of the challenges I faced was making time to devote to the business, create the course, and promote it. I still have my full-time job being a lawyer, writer, and speaker where I don’t always control when I have deadlines or when work gets dropped in my lap.

    The biggest challenge I faced, by far, with this venture has been managing my anxiety.

    • What if no one likes it?
    • What if no one buys it?
    • What if I screw up making it and it never gets to market?

    These are the types of fears I wrestled with on a daily basis. Sometimes they caused me to procrastinate working on the course. The best way I knew to manage them was to focus on the next task in front of me instead of being consumed by the bigger fears related to the course’s overall success.

    Lights Camera Lawsuit Pre-sale: February 14th-18th

    The pre-sale for Lights Camera Lawsuit: The Legal Side of Professional Photography will last only five days!

    Pre-sale Starts: Friday, February 14, 2020 at 8am AZ Time

    Pre-sale Ends: Tuesday, February 18, 2020 at 6pm AZ Time

    Pre-sale Price: $199 (60% discount)

    Please subscribe to make sure you don’t miss out on this fantastic pre-sale price. I’ll never offer this course at this price again.

    When the course goes live on March 16, 2020, the price will be $497. This is still a bargain for 10+ hours of legal information, but why pay more?

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    Ruth Carter

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  • New Photographers: Signed Contracts Needed at the Start of Every Project

    “He Walks Dogs” by Damian Gadal from Flickr (Creative Commons License)

    I recently heard a question from a new photographer. They are new to the business and focused on building their brand and rapport with potential clients. Their question was, “Should I have a contract on hand at the beginning stages of my business?”

    My response was an emphatic: “Yes!”

    Photography Contracts: Every Job, Every Time

    A contract is a relationship management document. It puts everyone on the same page about what each side is giving and getting and sets the expectations about how each side should behave.

    I tell my photographer clients to never accept a job without a signed contract, this applies even to TFP shoots (trade for photos). Your contract should outline what the client is hiring you to do, how/when you’ll be compensated, how the client can use the images, and who owns the copyright. It should also have terms that address how problems will be resolved.

    If the Prospect Balks at a Contract

    If you have a prospective client who says they “don’t think a contract is necessary,” turn and run. This raises to red flags for me: either they don’t understand how the business works, or they have devious reasons for not wanting a contract that could bite you in the butt in the future.

    One of the best pieces of advice I got early in my career was, “You never regret the client you didn’t take.” I have had no regrets about declining a representation when a client balks at how I do business. Every time I decline one of these clients, I feel like I’ve dodged a bullet.

    Don’t Worry that Requiring a Contract will Push Clients Away

    Don’t worry about being perceived as “pushy” my holding firm that a contract is required. You can be polite and respectful while say, “This is how I do business. If you don’t want to sign a contract, that’s fine, but you won’t be working with me.”

    You set the rules for how you work with clients. If they balk at your contract (assuming it’s reasonable), they shouldn’t be your client. A reasonable client would expect you to require a contract. A person with any business acumen won’t want to work with you without one.

    Let the prospects who don’t want contracts to self-select out. If you have problems with a client at the beginning of the relationship, it’s an indicator that they will be problematic throughout the project.

    If the prospect asks for a referral to another photographer, I recommend saying, “All the reputable photographers I know won’t take on a client without a signed contract.”

    It’s Cheaper and Easier to Prevent Legal Problems than to Fix Them

    This has been proven time and time again in my legal career. When a client comes to me with a business dispute, one of my first questions is, “What does your contract say?” When my client doesn’t have a contract, I have to piece together the terms of their agreement from emails, text messages, and the parties’ actions. Often my client spends more just having me piece these things together than what it would have cost them to have a custom contract template made.

    Additionally, in a dispute, it’s much easier to create a demand letter than references the terms the other side agreed to and back them into a corner where they have to try to defend the indefensible rather than assert what the terms of the agreement are from the assembly of bits and pieces of communications and actions that the other side can more easily debate.

    Lights Camera LawsuitTM

    There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

    At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

    Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

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    Ruth Carter

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  • Clarify What Your Photography Client is Buying: Prints vs Digital License

    “Shooting the Dress” by Garry Knight from Flickr (Creative Commons License)

    Professional portrait photographers generally need at least two contracts when working with a client: one for the sitting and one for the deliverables. For the latter, make sure the client is crystal clear about what they are, and equally important, what they are not buying. Having clarity on the front end will prevents problems on the back end.

    Assume Clients Don’t Understand Copyright

    Part of your job as a professional photographer is to educate your client about the basics of copyright and how it applies to images you’ve been hired to create. Many people assume that they are allowed to take a print, scan it, and share online or via email.

    In my pre-lawyer life, that’s what I thought. I spent plenty of time in the computer lab during my undergrad scanning photos. There was even a bulletin board dedicated to the photos that people left in the machine.

    This is still an issue for Joe Average people. Here’s a real question that recently came across my screen: I hired a photographer to take family pictures. I want to share them online and with extended family. The photographer says I can’t do that. Why?

    I suspect this person bought prints and not a digital license, or they have a license but it doesn’t include an allowance to distribute the images.

    As a risk-adverse lawyer, I would put specific verbiage in the contract that states what the client can and can’t do with the photos, including that only the digital version the photographer provides can be used to share the images with family and friends, probably in bold print.

    This serves two purposes:

    1. It protects your copyright, and
    2. It maintains the quality of your work.

    It’s also a good idea to include the information about your socials so they can tag you. (Good clients give credit their photographer when posting images online, even if they’re not required to.)

    What the Client gets with Prints

    When a client buys prints, they are buying the tangible object – the picture on whatever medium it was printed. They are buying the thing. They are not getting the copyright right or any copyright rights (unless that’s part of the contract they signed).

    The limits of what someone can do with a print are similar to what they can do if they bought a book. They can display it, sell it, give it away, destroy it, etc. What they can’t do is make copies of it.

    Scanning a print is making a copy. So is taking a photo of the photo.

    I’ve seen people do this at amusement parks. They don’t want to buy the photo the park took of them on the rollercoaster, so they take a photo of the screen where the image is displayed – so they take photo of the photo. When I’ve seen this happen, the teenage clerk usually says, “We’re not supposed to let people do that.” Now you know why. 

    What the Client gets with a Digital License

    What a client can do with a digital license depends on the limits within the license itself.

    Whoever owns a copyright has the exclusive right to control if and how the work is copied, distributed, displayed, performed, and what derivative works can be made from it. If I were writing a license for a photographer, I’d address all five of these rights – including “perform,” even though that’s not a verb we typically use in regards to photographs, but I’d rather be thorough.

    Most of the time, the photography licenses I draft are for a non-exclusive, perpetual, worldwide license. It also addresses whether the licensee is allowed to use the images for commercial use. Sometimes the photographer requests additional provisions, like one that says the licensee isn’t allowed to alter the images, which may include cropping.

    Following the license provision, I often add a sentence that states all other uses of the images must be approved by the photographer in advance.

    Solution: All Print Packages Include a Digital License

    One way to address this issue to require clients to purchase a digital license when they’re purchasing prints. The client won’t have to scan any images if they already have digital versions.

    When you first meet with a client to discuss their needs, ask them about what they want to do with the final images, including how they want to show them to others. If you hear a client talking about how they can’t wait to share the photo with family/friends – clarify what they mean and make sure purchase a package that suits their needs.

    Lights Camera LawsuitTM

    There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

    At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

    Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

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    Ruth Carter

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  • How to Respond When Someone Steals Your Photo

    Running with the Seagulls by Ed Schipul from Flickr (Creative Commons License)

    Photographers need to be mindful of the possibility that some people may use their photos without permission. People will pull images to use on their website and social media posts. Additionally, there are people who think they have rights to a photo merely because they’re in it. I’ve even heard of hair and makeup artists who take photos from the shoots they have worked on to use them in their portfolio.

    This issue is compounded by the fact that there is inaccurate information about photo use on the internet. Some sources assert that you can use any photo you find on the internet as long as you give an attribution and a link to the original. They think they’re giving you free publicity, but what they may be doing is committing copyright infringement and telling you about it.

    Start with the End in Mind

    When I work with clients who believe their copyright has been violated, one of the first question I ask is,

    How do you want this to end?

    Knowing what the client wants as a result of my work tells me what avenue for recourse they’re interested in pursuing.

    To maximize the likelihood of achieving your desired outcome, it’s best to decide before your photos are stolen how you want to respond to the alleged infringer so you can be prepared in advance for when it happens.

    Always Respond When Someone Uses Your Photo Without Permission

    You don’t set the precedent that people can use your photos without a license. If you let others use your work and then you want to assert your rights against another infringer, the infringer could point to your past behavior and argue that since you’ve allowed others to use your images without repercussions, that this new infringer should be treated the same.

    (This is why you hear about companies sending strongly worded cease and desist letters to minor infringers. They have an obligation to protect their intellectual property.)

    There are five ways you can respond when someone steals your photo:

    Option #1: Grant Permission

    If you’re ok with someone’s use of your image, you can grant them permission after the fact. It can be something simple like

    Hi there. I noticed you’re using my photo for XYZ. I’m ok with uses like this, but in the future, you need to ask my permission in advance. I grant you permission for this use.

    Option #2: Cease and Desist Letter

    This is a letter from you (or your lawyer) to the suspected infringer that informs them of the copyright rights they violated, directs them to remove the image by a specified date, and tells them what you’ll do if they don’t comply. Be ready to follow through on whatever you threaten/promise in your letter, or you’ll lose credibility.

    These are sometimes referred to as the “nastygram,” especially when it’s written by a lawyer and the client’s goal is to put the fear of god in the person so they comply. There is no rule that says you can’t send a letter that says,

    I love that you love my photo, but you need to remove it by . . .

    Option #3: DMCA Takedown Notice

    DMCA stands for Digital Millennium Copyright Act. This option is only available in situations where your photo and the infringement of it are both on the internet. Instead of sending a cease and desist letter to the person who stole your photo, you send a takedown notice to the company that hosts the website where the infringement is occurring. Some social media platforms have a form on their site for submitting a takedown notice with designated spaces for all the information you’re required to include in a DMCA takedown.

    Option #4: Send a Bill and a License

    There is at least one photo licensing company that is notorious for doing this, but any photographer can send (or have their lawyer send) a letter to the suspected infringer that says,

    By using my photo, you’ve agreed to my licensing terms. Here’s a copy of the license and your bill!

    If you want to use this option, it’s ideal if you have your licensing terms or at least information about licensing on your website.

    Option #5: Sue for Copyright Infringement

    This option requires the most work in advance compared to the other options because you must register the photo’s copyright with the U.S. Copyright Office in order to be eligible to sue for infringement. There are time constraints in which you have to register you work in to be eligible for statutory damages, including attorneys’ fees. Additionally, your photo has to be stolen by someone who can afford to pay the damages, otherwise you may never collect (and you’ll likely have to pay for your attorney yourself).

    If registered your photo too late, you can still sue, but you can only get your actual damages, and you have to pay your attorneys’ fees. Most of the time, in this situation, it’s not worth it to sue because you’ll spend more on your attorney than what you’d get in damages from the court.

    What’s the Right Option to Protect Your Photography?

    You have to make that decision yourself. Decide in advance how you want to respond when someone steals your photo and plan accordingly.

    Your strategy for responding to suspected copyright infringement can include more than one of these options – such as sending a cease and desist letter yourself and if that doesn’t work, then have your attorney send one. Some people are more motivated to comply when they see the law firm’s letterhead.

    Regardless of your strategy, it’s best to speak with your attorney in advance and consult them when dealing with someone who’s using your photos without permission. There have been many times that I’ve written the cease and desist letter for my client to send that included the sentence,

    I hope we can resolve this without having to get lawyers involved.

    Lights Camera Lawsuit

    There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

    At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

    Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

    •

    Ruth Carter

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  • What Makes an Effective Photography Contract Template

    “Photographers” by Mark Fischer from Flickr (Creative Commons License)

    One of the most common questions I get from photographers is, “Where can I get a good (free) contract template online?” I’m sorry to say that I have yet to come across such a resource that I’d feel comfortable recommending to anyone, but I can tell you what I look for when I review these documents.

    Contract = Relationship Management Document

    The best way I can define a contract is it’s a relationship management document. Its purpose is to put everyone involved on the same page about their responsibilities and how you will address certain problems if they occur. Contracts manage expectations and allow you to hold each other accountable to the promises you made.

    When I write a contract for a client, I try to walk through the interaction between the people involved during the relationship created by the contract and consider potential problems that might occur.  

    Here’s something to note about contracts: Whichever side writes the contract, does so based on their best interests. The drafter is looking out for their interests, not yours. I write the same type of contract quite differently depending on which side is my client.

    Photography Contract Review

    When a client asks me to review a photography contract template, these are some of the provisions I expect to see in a quality contract:

    Parties and Scope: A contract should be clear about the who, what, where, and when between the parties. A third party should be able to read the contract and understand who is party to the contract and what their responsibilities are.  

    Consideration: “Consideration” is legal term meaning an exchange between the parties – what is each side giving and getting. In photography contracts, it’s usually trade for photos (TFP) or payment for images.

    Deliverables: I would expect a photography contract to clearly state what the model/client is getting from the photographer as well as any limits on what the model/client can do with the images.

    Copyright Notice: The contract should state who will own the copyright in the images – the photographer or the model/client. If the model/client is getting the copyright, I’d expect them to have to pay more than if they were just getting the images and a license to use them in certain ways.

    Model Release: If you want to use the images for marketing purposes or to make money off the images in other ways, you will probably need a model release.

    Problems and Worst-Case Scenarios: How are you going to deal with common issues like cancellations, no-shows, refund requests, and late payments? Those all should be addressed in your contract. What about rare but bad problems, like the files from the shoot are stolen, corrupted, or otherwise destroyed before you can make a back-up copy? You may want to address the worst-case scenarios in your contract too – usually in the “force majeure” section.

    Dispute Resolution: If there is a problem between the parties, how will you resolve it – mediation? Arbitration? Litigation? Some other way? In what county and state will this occur? Which state law applies? In some states, you must specify that the non-prevailing party has to pay for the prevailing party’s attorney’s fees, otherwise the court won’t likely require this.

    Boilerplate Terms:  There are some provisions that I include in nearly every contract I write, like waiver, severability, modification, and entire agreement. These are the provisions that can have a substantial impact on your relationship with the other party but are often left out when a lay person tries to write their own contract.

    No One Size Fits All

    A contract template is a starting point for a contract with a model/client. There may be times when you need to revise it to fit the needs of a project. Additionally, you will likely need different templates for portrait work and event photography because the issues the contract needs to address are different.

    There’s nothing wrong with using a contract from the internet as a place to get ideas for contract terms and how to phrase provisions, but I’ve never seen a contract template that someone got for free online that I would approve as written.

    Lights Camera Lawsuit

    There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

    At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

    Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

    •

    Ruth Carter

    •

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