My take on The Orphan Works Act of 2008

If you're a pro photographer and haven't been hiding in a cave, you've probably heard about the Orphan Works Act (OWA). Also known as H.R.5889 (the House version of the bill), and S.2913 (the Senate version). Both versions are currently in draft stages, and are similar enough to discuss as a single document.

Even if you do live in a cave, you surely must have heard the screams from protesters about the bill echo throughout your cavernous walls. In fact, a google search yields more web pages advocating protests against the bill than actual content on the bill itself. These perspectives run the gamut from utter hysteria to that of a kinder, gentler kind of hysteria.

An example of the total hysteria -- which is always coupled with loads of misinformation -- is Mark Simon's blog posting, which you can read here. This is the piece that's been passed around to photographers and other artists everywhere, by email, internet forums, faxes, and word-of-mouth. It and other emails like it, are responsible for the dispensing of more untruths and rumors that have only lead to confuse people. Yet, as our culture dictates, if you got it in email, it must be true. (Hint to dumb people: whenever you read something that is peppered with lots of exclamation points, you are reading propaganda, and are also being lied to.)

A far more sound, balanced, and informed retort to Simon's piece can be found on Meredith Patterson's blog. Unfortunately, Meredith's post doesn't really make its rounds in photo circles.

In short, just about every objection I've read about the OWA has been rife with unsubstantiated statements about how photographers will lose their copyright protections, or that people will be able to use their images for free. Yet, at no time does anyone cite text from the bill that even hints at this possibility.

And though Meredeth does a good job at dispensing with the most common misconceptions about the OWA, it doesn't talk about the stuff that really matters to artists. So that's what I'd like to do.

To begin, I'd like to do what no one else that argues about this bill typically does: actually provide a link to the bill itself so that those playing the home game can read along. I'll be citing text from it to illustrate the points that matter, so this reference point might help:

http://www.thomas.gov/cgi-bin/query/z?c110:H.R.5889:

The bill, which is surprisingly short and easy enough to read (if you don't mind long lists of comma-separated items), is broken down into several sections. Only one of which has real substance to the "uses and limitations" that is the source of everyone's consternation. I'll get to that very soon. But first the summary: the OWA intends to provide certain protections for those who use copyrighted works in certain ways, so long as the original author of the work cannot be found. Hence, the work is an "orphan." If you need more background than that, then you should do some independent research. A fantastic summary of what the problem is that is intended to be solved can be found here: http://www.copyright.gov/orphan/

Of all the objections you can find on the internet, if you exclude the unfounded and ridiculous (which is virtually everything), what's really left to discuss is the notion that publishers can potentially use a copyrighted work (like a photograph) "for free", so long as they claim that they couldn't find who the copyright holder is. This has created the fear that major publishers and broadcast television stations will crawl the internet for photos, and just use them carte blanche, and never paying license fees.

This is the part of the code alludes to this very point:

Section 2(c)(1)(B)
An order requiring the infringer to pay ... compensation for the use of the infringed work may not be made ... if the infringer is a nonprofit educational institution, library, or archives, or a public broadcasting entity...

In short, the protesters are worried that non-profits, libraries and TV stations have free reign to steal photos at will. Then the fear mongers take it one step further: that a user of the photo that isn't one of those above entities, may try to use legal maneuvering or other forms of masquerade as one, so as to ultimately steal images for commercial use (a use which normally commands an even higher license fee that the photographer will have missed out on).

Fortunately, it's not so simple. And this is why it's important to read the text of the bill. As mentioned above, the meat of the bill that applies here is Section 2, which has three headings: (a): Definitions, (b): Conditions for Eligibility, and (c), Limitations on Remedies. The quoted excerpt above is from section (c), where it lists the entities that do not have to pay compensation if they use a work that does have a copyright holder who comes forward. But, the mistake people are making is assuming these entities are automatically exempt. No, they're not. First, they must become eligible for exemption by satisfying part (b), which states that the user must have done a "Qualifying Search" to discover who the copyright holder is. And this is a rather arduous process, as you can read for yourself:

(A) REQUIREMENTS FOR QUALIFYING SEARCHES-

(i) IN GENERAL- For purposes of paragraph (1)(A)(i)(I), a search is qualifying if the infringer undertakes a diligent effort to locate the owner of the infringed copyright.

(ii) DETERMINATION OF DILIGENT EFFORT- In determining whether a search is diligent under this subparagraph, a court shall consider whether--

(I) the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself;

(II) the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (B); and

(III) the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.

(iii) LACK OF IDENTIFYING INFORMATION- The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions under paragraph (1)(A)(i)(I).

In other words, before anyone is eligible for limitations on damages, they must have done a search that is compliant with the methodologies listed above, and documented in such a way so as to prove to a court that the user has complied with the Act. This makes the task of "frivolously stealing an image and hiding behind the OWA" less likely of a problem. One would have to carefully weigh the cost of properly documenting a legally defensible "diligent search" against the cost of just licensing the photo in the first place. (Actually, there's more to it than this, and I'll come back to it soon.)

Of course, this also assumes that the photographer is known. And that might not be the case. Hence, the second concern is that because photos are passed around the internet like wind blowing sand in the desert, it's nearly impossible to really know where any given picture might have originated. Even honest publishers don't know whom to go to. So, could they also get away with using the photo for free? Perhaps, but they also have to assume risk: that someone would still come forward and file an infringement claim. Few want to take this risk, as I'll come back to later.

But, it's the requirement to do a "diligent search" that brings me to what I believe to be the best part of the OWA:
Section 3: DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS
This section states, "The Register of Copyrights shall undertake a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection." Furthermore, the Copyright Office "shall make available to the public through the Internet a list of all electronic databases that are certified."

Read that closely: a certification process for the establishment of a database. This means that it isn't just the copyright office that has a database, but that many companies could build such a solution and apply for certification. Each would then offer services to the general public for finding copyright holders. For example, a service may provide the user with a form to upload a photo to the site, much like the way you upload photos to a photo-sharing site, and the user gets back a report detailing who the registered copyright owner of that photo is.

Sound like magic? Sound too good to be true? Sound familiar? I publicly proposed such an idea in a blog I wrote on January 21, 2008, in this blog entry, after I had privately proposed it to the Copyright Office the prior year. I make no claims that it was my idea that made its way into the bill. I am only saying that, because of its similarity to my proposal, I am familiar with the ideas and intents that it provides, and feel it does everyone a great deal of good.

My intent at the time had nothing to do with OWA or anything like it, but rather, to provide an infrastructure to verify who owns a photo for a variety of reasons. At the time, the topic du jour was the Creative Commons dilemma. Here, any anonymous person could declare any image to be "free" by placing it under a Creative Commons License, but they can do so with no registration, verification or authentication of any kind. I argued that this aspect of the CC had created a breeding ground (not to mention incentive) on both sides (photographers and licensees alike) to game the system for their own profit. To avoid this problem, Licensees need a way of verifying that a photo hasn't already been copyrighted (at least). My idea of the certification process happened to address that problem, but it can also easily address the OWA as well. (As you can see, it's part of it.).

One of the things I pointed out in my proposal, and which applies directly to why it's so great to see it in the OWA, is that the entire idea can be turned on like a light switch (well, in government time, that is). This could be done nearly the same time the OWA were to be enacted because because both the database, and the image matching/search technology already exist. Several firms, like picscout and IdeeInc, use image recognition algorithms right now: they start with a sample image, determine it's "fingerprint" (that's the algorithm), and then find where else on the internet where the photo exists. They do this by comparing this fingerprint against all the other fingerprints they've collected from the web pages their robots have been crawling for years. If the crawl is far and deep enough into the web, more matches are found. The clients of these companies are large stock agencies who pay to find infringers of their works, and then demand payments or damages.

If the OWA passes, each of these companies would just process the copyright "library" of images (just like it did when it crawled the web), fingerprint them, and then do instant comparison analysis against an input image by any given user. The only thing keeping that from happening today is access to the copyright office's database of images.

Other players in this could be Google, Yahoo and other search engines, because they already do all this as well. In fact, faster and more thoroughly, for obvious reasons. They don't make it available to the public due to certain business and legal concerns that are beyond the scope of this article, but the OWA would alleviate these legal concerns. The doors would open up to a truly public system nearly the same day the certification process would become enabled.

Of course, the one thing this relies on is photographers actually registering their works with the Copyright Office. Not doing so has always been dim-witted, but after the OWA is enacted, there's all the incentive to do so. And now that you can register online, the process is even easier than that one-page form you used to have to fill out.

What's the net effect of all this on the photo licensing industry? As I wrote in my January 2008 blog, Infringements themselves could become a thing of the past. While people could still "steal" images and publish them without the photographer's consent, they'd be taking a huge risk in doing so because if the photographer caught them (a highly likely event, given that media of all sorts is being digitized and indexed, therefore "findable"), the case in court is pretty cut and dried: "Your honor, all one needs to do is simply input the photo in the copyright office database and my name comes right up." How could a judge not find the infringer guilty? Better still, it could determine that the search is so easy, that not doing so would imply a willful infringement. By statute, "willful infringements" increase the ceiling of the damages the judge may award from $30,000 per infringement to $150,000. With that kind of risk and a sure-fire losing case in court, the number of infringements would drop considerably.

Another unexpected benefit of the copyright database: it might even generate sales. If an honest company finds your photo on a website somewhere, or it's been passed around in email, and they want to use it, just use the database to find you and license the image legitimately. Today, they'd never know it was you.

Here's another benefit: it would be harder for someone to claim someone else's images as their own--a phenomenon that's already happened everywhere from major stock photo agencies to social-networking sites like Flickr. So long as the photo's been registered with the copyright office, a simple search will usually yield the correct owner. Though this is obviously not bullet-proof, it's far superior than what's available today.

True, there will always be "orphaned works" out there, much of it not on the internet. But the provisions of the OWA's "diligent search" requirements are onerous enough, that one doesn't want to mess with offline content frivolously as well. After all, they may not be online, but they may still have been registered with the copyright office, and if the promise of the online database holds true, these offline items may end up being found as well.

Once again, this works best when works have been registered. But, what about those that haven't been? Does the OWA have sufficient teeth to address everyday people and their works, whether images or songs, or what-have-you? If the work is not registered, it won't turn up in the database search, thereby making it much hard to legitimately find the copyright holder. There are those who say that this alone makes stealing easy for publishers: because it's easy to claim that there are tens of billions of photos online, and finding the owner is like finding a needle in a haystack. But the court also knows that the OWA isn't there to protect people from litigation just because they didn't find that needle. The court is going to consider whether the publisher was looking in a haystack where every straw probably has a known, current, copyright holder in an environment that's inherently crowded with such. Judges look for "intent" by the parties, and it isn't going to be hard to see what's going on when such cases come before them.

Oh, and let's remember the pragmatic reality of how these things go in real life. If a company were to be dumb enough to try to hide behind the OWA, and they get sued by a copyright holder for infringement, the company's lawyer is going to do what every lawyer does: avoid the litigation by trying to reach a settlement. Though it's sad when innocent companies get sued on baseless claims, they still know it's always better to settle than to go to court. And those are the innocent companies. I'll bet you Bill Gates' next paycheck that a guilty party is even more eager to settle than risk going to court and losing. That would not only make them ineligible for safe harbor (even if they are a nonprofit, library or PBS station), but that the existing statutory damages would apply. This settlement is virtually assured to be a much higher price than what they would have paid had they licensed it legitimately. (A good lawyer will assure that!)

In the end, photographers are really not losing anything at all with the OWA, and I see no real concern for risk in any of the areas that has been getting all the hoopla. Granted, it's not a perfect bill, and I don't doubt there is probably language that needs cleaning up. Nor am I disputing the (currently unknown) possibility that the OWA might exacerbate infringements. But that doesn't mean they will necessarily be "successful" infringements. And, even if there is an increase, it would be a short-term anomaly, quick to subside once people become aware that the OWA doesn't protect them as they thought they would.

In my mind, the true golden nugget is Section 3 of the bill, where the public can access databases of registered works. This will have the greatest effect on providing disincentive for infringers of all types, even those that have nothing to do with the OWA.

When Editorial Uses of Photos Require Model Releases

Recently, I've noticed a big increase of discussions on photo forums involving questions of whether model releases are necessary for certain types of shooting conditions. What struck me is that so many of these questions were about the need for releases for editorial uses, a form that normally doesn't require model releases anyway.

Here are some examples that came up in discussions, all of which share a common theme.

1. You're a wedding photographer and you're shooting the bride and groom during a ceremony at their home.
   
   
2. You're an equestrian photographer on a "farm call" to photograph a horse at the owner's stable.
   
   
3. You're an art photographer and you're at an artist's studio to shoot a few pictures of his latest sculpture that he will send to his agent, who will then send them to magazines for a press release.
   
   
4. You're a portrait photographer and own a studio at the local mall. A client comes in to have pictures taken of him so he can distribute them to potential modeling agencies.
   
   
5. You're a press photographer, and develop a special relationship with a congressional candidate, who invites you to the family estate to photograph the clan for a memoir they intend to publish about the personal tolls that political life can have on a family.

Though there are contracts associated with each of these assignments, none of them include model releases by the subject for the photographer. Here's the question: can you license any of these photos for EDITORIAL use to a newspaper who is doing a story on the individual who is the subject of any of these given photos?

Most people would say no, and would guess that it's because of the lack of model releases. True, but the more important (and harder) question to ask is: why? After all, as you may know, model releases aren't usually necessary for editorial uses of photos, and you can't get more "editorial" than a newspaper story. So, what makes these cases above so different that model releases would be required for an editorial publication?

Here's where almost everyone will now guess wrong: they'll say that the photography was done on private property (or "of" private property).

That's not it.

What matters are the laws governing "personal privacy," and the fact that the property itself may be private and/or personal is actually not a factor here. Privacy laws protect people's rights in ways that transcend issues of "property" entirely. This may include conditions where 1) people waive their privacy rights even on their own property, and 2) people preserve their privacy rights on public property. So, the first thing you need to do is dispense with the notion that "property" has anything to do with privacy--at least, insofar as the publication of photos in editorial contexts is concerned.

The other thing you need to immediately forget are the high-profile cases concerning "violations of privacy," such as breaking and entering, intruding on personal space, planting hidden cameras in people's homes or in the workplace, or using brute force methods to get pictures. In short, stop thinking about just those cases that involve "aggression." While such aggressive techniques do violate privacy laws, these are obvious. What's more interesting--and which is far more common--is where photographers can violate privacy laws in very passive ways, even including situations where the photographer has written permission from the photo subject to photograph him. The cases listed at the top of this article are perfect examples.

Here's how you need to think about privacy laws from the top down:

Does there exist "a reasonable expectation that one could be photographed by the general public without the person's knowledge"?

What is the relationship between the photographer and the subject?

How much "orchestration" was necessary in order to capture the photo?

Each of these requires discussion, so let's address them individually. After that, I'll tie them all together to present a real-world scenario that everyone can identify with.

The first item is the most important because it lies at that pivotal dividing line between personal rights and that of the First Amendment (which affects freedom of the press). That dividing line means that people are entitled to "privacy" when they're in certain conditions, but they waive their rights in other conditions. The easy cases we all know about are: when you are in public, you can reasonably expect that you could be photographed without your knowledge. When at home, you can expect that your privacy is protected from such photography. Easy enough, but it gets complicated when you introduce other conditions.

For example, each item in the following list is a private property: an amusement park, a bar, a zoo, your swimming club, your golf course, your church. In each of these cases, the general public can come, and they often have cameras with them. Hence, everyone on the premises has waived certain rights of privacy insofar as their photos being taken by others, even though the property is "private." Don't necessarily take this as a universal truth though; there could be specific venues where photography is prohibited, thereby changing one's "expectations" of being photographed. Still, once again, don't take that as a given either. Just because a venue may say there are prohibitions, doesn't necessarily mean the expectation goes away. It's not enough to just see signs that say "no photography," or a warning on the back of a ticket stub that says you can't take pictures. And you certainly never rely on your opinion that people shouldn't be taking pictures. If the rule is not enforced, and you still see people shooting away without intervention, the expectation of being photographed still exists.

True, one could argue this case to a judge, and one may get some leeway because of this, but the judge will weigh other factors as well. He's going to be as objective as possible by looking at the behaviors of others in the environment and assessing what's actually going on. If many people are conspicuously taking pictures, whether they're allowed to or not, this will be considered. On the other hand, if security personnel are stopping people from taking pictures, then it can be argued that the expectation of being photographed is reduced. Between these two extremes lies the reality of the situation.

Consider a celebrity who argues that he only showed up at the event because he was promised that no photos would be taken. If it was clear that the ban wasn't enforced, and there were people taking pictures everywhere, and he had an opportunity to leave before being photographed, he may have a hard time convincing the judge that his privacy was violated by the photographers. Separately, he may have a claim against the venue for failing to enforce the photo ban, but the judge will consider that the conditions at the event were obvious and the celebrity had an opportunity to leave. By staying anyway, he subjected himself to a "reasonable expectation that he would be photographed." If you're one of the lucky photographers that got a photo of him, and that photo ended up in the newspaper, you haven't violated his privacy. That's editorial publication, and the photo doesn't need a release.

So, the fact that you're on private property is inconsequential. Indeed, there are cases where you can be in a public place and still have your privacy rights protected. How? This gets into the second point above: what is the relationship between the photographer and the subject?

To illustrate, consider the scenarios listed at the top of this article. In each case, the people being photographed asked the photographer to do so because they wanted the pictures for themselves. Even if they are for publication in the general press, that part is irrelevant insofar as privacy rights are concerned. It is the direct invitation to the photographer by the subject to shoot a specific thing which implies that the subject has not waived his privacy rights. Thus, the photographer's use of any of those photos requires consent from the subject (in the form of a model release). Yes, including for editorial publication.

Note that this does not affect copyright status--the subject is not suddenly the owner of the photos, nor does the relationship imply a work-for-hire scenario. It's simply a matter of privacy, and the scenario involved means that that no one has waived any rights.

Once again, note that "private property" has nothing to do with anything here. Whether the photo session was on public or private property, the photos taken by the photographer in question are restricted due to the circumstances involved.

Back to the "relationship" factor between the photographer and the subject: The alert reader will note that, if the photo session is on public land, one cannot necessarily assert privacy rights to others. Not every person with a camera is "the photographer" with whom the subject has a relationship. Consider a couple that hires a wedding photographer to shoot their ceremony, and that ceremony happens to be in a public park. Only the hired photographer is bound by the agreement made by the couple, so the photographer has no rights to license those photos. However, because the ceremony is in the public, other people who have cameras, such others at the wedding or uninvited bystanders, can each shoot all they like, and license those photos to others for editorial publication or any other uses that do not require model releases.

The special relationship between the photographer and the person that hired him has been upheld in court cases, especially those involving weddings. Judges' rulings have maintained that people's expectations of the service that the photographer is providing is one in which they can reasonably assume that these photos are for their personal uses.

To illustrate the strength of this relationship's effect on the need for a release, consider the scenarios I described involving an artist and his sculpture, or the owner's horse. Normally, only photos of people require model releases because animals and objects don't have privacy or publicity rights. But, there still may be restrictions on the use of these images because of the privacy laws involved and the "relationship between the owner and the photographer." The fact that the photographer was invited for the purpose of providing a service puts limitations on all the photos taken during the session.

What's further interesting is that the strength of these cases have been decided on the weight of another factor involved, which leads us to the third item on the list: to what degree was a photo "orchestrated."

When it comes to orchestration, the idea is that the more involved the photographer and subject are in coordinating how photos are taken, the more "invasive" the photographer is on the privacy rights of the subject. Remember the first rule, where a subject waives his rights of privacy if he can be photographed without his knowledge? Clearly, if the person is unaware he's being photographed, his actions are of on his own free will, and anyone that witnesses such acts in a public space is entitled to publish photos of them in an editorial context. But, if the subject is directed in a controlled situation, he is no longer acting on his own accord--he's doing what he's told to do--so photos of him may not necessarily be representative of him. Even if he's agreeing to be photographed, he still maintains some rights of privacy.

Now, understand that this is purely academic right now, and real-world situations may present very gray areas. For example, just because you ask someone to pose for a picture doesn't necessarily mean that they are now "being directed." And though you may still be safe if you ask them to wave, or stand next to a building, or even spend considerable time with them in a casual or candid manner, you can see that each of these progressive acts leads you closer to that gray area; the point at which you cross into the "privacy" zone is rarely clear and has to be evaluated on a case-by-case basis.

So now, let's pull together all three of the checklist items, and consider a case that involves them all: you're hired by a restaurant to photograph the dining room with people eating. Here's a complicated situation because we have many people involved, a variety of conditions, and possibly some "direction" by you to the patrons. So, let's piece it all together.

First, unlike the restaurant owner, the diners have no relationship to you at all, so the first question remains the most important: "is there a reasonable expectation that they could be photographed without their knowledge?" As discussed before, one has to do an on-site assessment: Are others taking pictures? Are you conspicuous with your camera? Has the restaurant owner told the clients (verbally or with a sign) that they might be photographed? Even subtle things like whether it's a quiet, intimate, "private" sort of venue, or whether it's a loud arena-type of pizza parlor, can imply a different perception on whether there's a "reasonable expectation of being photographed."

Assuming there is such an expectation, then the clients have waived their privacy rights, and you can license the photos (without releases) to a client who may publish them in an editorial context.

Next is the question of "orchestration." Are you simply photographing the room, or are you having people pose for you? Is it a simple shot, or are you directing a man and a woman (who don't know each other) to clink their glasses together and gaze into the camera? Are you adjusting the smile? Fixing hair? The more you get into these actions, the more likely it is that your orchestration begins to threaten their rights of privacy if these photos were published without a release, even in editorial contexts. You haven't violated anything by taking pictures; it's the publication of them (or the licensing of them to someone else who can publish them) that could be.

Assuming there is no orchestration, and that people were aware that they were being photographed, you can license these photos for editorial purposes to any buyer.

Oh, Wait! Had you forgotten that it was the restaurant owner that hired you? He's the one that wants to use the photos. Is he aware of all these issues? Probably not at all. So, as the hired photographer, you have to be aware of them so you don't get your client into trouble when he publishes the pictures.

You might think that it'd be easier if you just had everyone sign releases. Well, again, in the real-world, that could cause more trouble than it's worth. Diners don't want to be bothered with that as a group, so you would really only want to do that with people with whom you've given direction, or who may appear to be "advocates or sponsors" of the restaurant. Why's that? Because the owner probably wants to use these photos for promotional purposes, and for that, he would need model releases from anyone that could appear to be "advocates or sponsors." Note that model releases are not required from people who are simply part of a scene, even if they are recognizable, and even if the use is commercial (advertising or brochures). What triggers the need for a release in a commercial use is if the people appear to be "advocates or sponsors." So, if one of the pictures you took is of a couple clinking their glasses looking directly into the lens, and the picture is clearly on them, they would have to sign a release for the restaurant to use their photos. On the other hand, a wide-shot photo of the entire room with everyone eating at their tables (not looking at the camera), none of these people would need to sign a release. This applies to both the commercial and editorial uses by either you or the restaurant owner.

Got all that? Well, we're not quite done yet. There's one more important factor in the "relationship" section that hasn't yet been brought up: one in which the photographer asks the subject to participate in a photo shoot, rather than the other way around. In each of the scenarios discussed so far, the subject asked the photographer to be photographed. But, what if you're the one to call the farm and ask owner if you can bring a group of photographers (perhaps students) to do a photo session of the owner and his horses? This is a subtle but important difference that could change the entire landscape of whether releases would be required for editorial uses.

Another way to look at this is to ask, "what is the purpose of those photos?" If the subject hired the photographer, he knows what the photos are for, and his expectations about how they are used have been set. If the pictures were to later show up in the paper, it would be a dramatic difference to his expectations than if you asked the subject to photograph him. Here, his expectations of the photos are simply undefined, and this subtle difference weighs very strongly insofar as determining whether his privacy rights have been violated. For instance, he'd have an easier case to make if he could say to the judge, "I hired the guy to photograph me and my horses so I could have prints--imagine my surprise when they showed up in the paper." This is a stronger case than if he said, "These guys asked if they could take pictures of me, and a few weeks later, there I am in the paper." Here, the difference in the preconceived expectations carries weight as to whether the farmer's personal privacy has been violated.

Again, individual cass can be argued, but I illustrate the difference here because one scenario is a stronger case than the other. And when you factor in other instance-specific details, the pendulum has a tendency to swing in unexpected directions quite easily.

And finally...

You may recall that in the beginning of this article, I said there was a contract between the parties in each assignment. But I didn't say what was in those contracts so we could focus on understanding the concepts involved. Now that that's done, we can go back and revisit the contracts and see if the terms alter anything we've assumed.

First and foremost, if the contract is "work-for-hire", then the photos aren't even yours in the first place. You have to hand them over to whoever hired you, and you're done. You have no rights to or legal access to those photos (unless, of course, the client chooses to let you have them). A work-for-hire contract has to actually use that phrase.

Assuming it is not a work-for-hire contract, the client's own use of the photos are limited to personal use only. I had mentioned in several of the examples that the clients were going to publish the photos in some form. Technically, because you own the copyright to the photos, the client cannot publish them at all without permission from you. Assuming that it was the client's intention to publish them, we can assume that the contract specifically stipulated the right to use the pictures for the stated uses. However, just because the client can use the pictures in the manner stated, it does not affect your use of the photos insofar as the model release requirements are concerned. That is, if you performed a portrait session with a client who had you sign a contract saying that he's going to provide these photos to a stock agency who will license them, he has the right to provide them to the agency because it was written into the contract. You don't, unless you have a model release from him. Otherwise, you've violated his privacy rights because he came to you to get his pictures taken.

And that brings us to the last point: while it's important to understand all these issues raised here, the best business decision you can make whenever any signed contracts are involved, is to include language that outlines the terms of a model release. That would make the entire discussion moot. And provided that the release language is broad, you could even license all the pictures discussed here for commercial uses. The one exception would be the restaurant scenario because other people (other than the owner) may be involved. The owner can't sign on behalf of clients, so those people would have to be dealt with individually.

Model Releases: Why US laws are important to non-US photographers

Since I posted my announcement of my model release book, the most frequently asked question has been, "Why do you only focus on US laws? What about the rest of the world?"

To understand that, one must first get familiar with the nuances of how and why model releases are necessary. For that, I urge you to read my model release primer. There, you will learn that the liability of publishing an unreleased photo of someone is not the photographer's, but the publisher's. In other words, your client. Whoever buys photos from you is the one that can get sued if the person in the photo hasn't been released. Despite popular misunderstandings, photographers don't get model releases to protect themselves, they get model releases so they can broaden the market of buyers of their photos. A released photo has a better chance of selling than an unreleased photo. (And sometimes, for more money.) So, if your business is to sell as much as possible, you want to broaden that range of buyers to the widest possible audience.

Now, if you're a photographer in France or Germany thinking that because all your clients are local to your country, you don't need to worry about US laws, think again.

There are two very important truisms about the photo industry: First, the US is where most photos that would need model releases end up because international trade and other matters of globalization. In other words, the US is a target market for most everyone now, even if indirectly or unintentionally. Making matters more critical is that the US has some of the most punitive laws protecting people's privacy and publicity, and they can apply to anyone, not just US citizens. Statistically, people sue in the US over such matters more than any other country, and the damages are very, very high. This all adds up to very paranoid companies that want extra protection. Indeed, anyone that does any kind of international business at all will be very cognizant of US laws, and may only license images that have releases that satisfy US laws.

You see, US laws begin with where an "infringement" took place. And in today's world of global distribution of content, either in print form or over the Internet or on TV, that could be the US. Where that is is called "jurisdiction." Since it is the publication of the image that triggers the need for a release, the question is whether any of the following entities reside in the US: the publication, the company that published it, any of its business associates (such as sales reps, etc.), or even the target audience they are advertising to. If any of these entities exist in the US, it is said that the publisher has "presence" in the US, in which case, a suit can be filed in the US under US laws. This is true regardless of the nationality of any of the parties involved. If you are from another country, and take a picture of someone in another country, and license it (without a release) to a non-US company, but they used it in an ad in a magazine that is published or distributed in the U.S., the subject could file a claim against that company in the US under US laws.

Because of this, international companies that advertise in international magazines, or on the internet, or on television must be cognizant of laws that apply in each of the countries in which it has "presence." While that may sound onerous (it is), I come back once again to my earlier point: the US has some of the most punitive laws and litigious culture than any other country. So, it is more likely that a company that complies with US laws is probably covered for most other countries as well. And you want to sell photos to those companies.

Oh, you may object to some legal details if you like. Yes, I'm simplifying to some degree, because proving that a company actually has "presence" in the US could be onerous as well. Clever lawyers will do their darnedest to refute such broad interpretations of law in other countries. But, clever lawyers act on behalf of the plaintiff as well, so this sword cuts both ways. Still, it's true that a local German company that sells local beer to a limited geographic region is not going to get called into a US court just because they happen to have a website that has an unreleased photo of someone and that website can be seen in the US. It'd be hard to convince a judge that there's any real "presence" there. So, let's not get carried away with ourselves: not every use of any photo is suddenly subject to US laws or courts.

But, again, let me remind you of your job as a photographer: to cast the widest net to catch as many buyers as possible. If you are knowledgeable of (and comply with) US laws in your photo business, you will not only get more potential US-based buyers of your imagery (not a small market by any measure), but you'll have a better reach for your local buyers as well. And that's really what this is all about.

For completeness, there's the other side of the coin that may surprise many people. If you took a photo of an American citizen and licensed it to a magazine in Cuba, where there are no such privacy or publicity laws, the infringement took place in a jurisdiction where no such protections are provided, and no claim can be made. The fact that the subject is American is irrelevant. You can publish naked pictures of Paris Hilton in Cuba and she can't sue you. (Of course, the Cubans authorities might not take too kindly to it, but that's a business decision you'll have to make.)

In summary, U.S. laws still apply if you license images to clients that publish in, or distribute to the U.S., which covers a lot of international media. Regardless of where you live, or to whom you license photos, your clients may need to consider U.S. laws, which, in turn, can affect business decisions you make. So, it's in your interests to understand US laws.

And yes, this is all covered in my new model release book. And, for what it's worth, the combination of the low value of the dollar, and some really great postal rates I've gotten, it's a bargain when you buy it on my website.

(NOTE: the shameless bit of self-promotion you just saw was that of a sudden switheroo to my being the lowly salesman type. I disavow my actions on this matter, as it was imposed upon me on the advice of my PR rep, who also happens to be me. But that's a technicality that you can take up with any one of my vast arsenal of lawyers in waiting.)

Non-commercial uses of images: do non-profits need model releases?

In the spirit of my recent accouncement of my latest book on model releases, I thought it apropos to post a blog entry I have had in the queue for a while: whether non-profit organizations are immune from the need for model releases for whatever they publish: promotions, newsletters, fund-raisers, etc. At the heart of this question is what is meant by "commercial vs. non-commercial use."

It started when I read a blog entry from a site that caters to non-profits. It had this text:

"...if you are publishing a photo for information or educational purposes, not commercial purposes like product advertising, you can typically print it without a model release. The majority of non-profit publications fall into this category."

The premise here is erroneous: that non-profits fall into the category of "non-commercial users." This is not the case, and this misunderstanding lies in what is meant by "commercial use." Most people associate this expression with advertising and promotion of for-profit products and services. Yet, those are not the only uses covered by the law surrounding privacy and publicity laws. And it's those laws that stipulate whether consent is required from a person to publish a photo of them. (A model release is what grants that consent.)

These laws are not based on "commerce" as people traditionally think of it, but around how people are represented, regardless of the kind of business the publisher (user of the photo) happens to be. Whether a person's likeness is being used to advance a cause, an agenda, or any number of things, these are really the core of the intent of the law.

Federal statutes exist that protect people's rights of publicity, and about half the states in the US have additional statutes that go beyond those basic principles. A good example of this is found in the California Code 3344, which can be viewed here.

You'll note that there is no text in any of this language that talks about whether money is made, or the status of the publisher of the image, such as whether it is a for-profit or non-profit. This is not what is meant by "commercial"... Instead, it really refers to "in the course of business," and to differentiate the use from news reporting and other uses protected by the First Amendment.

For purposes of model releases, it's the use of the image that matters, and non-profits are businesses, like any other: they have staff, letterhead, advertising and marketing budgets. This is all part of "normal course of business," otherwise known as "commerce." Accordingly, when they publish photos of people, there may be a need for model releases that applies no differently than for for-profit companies.

Further supporting the notion that the law is not intended to exempt non-profits is the fact that the statute does not define what "services" are. A non-profit that delivers food to the homeless is providing a service, as is a non-profit that advocates humane treatment of animals, or that provides assistance to war veterans, or religious groups that teach reading, or HIV/AIDS groups that provide support services, or gay and lesbian organizations, and so on. If the assumption made by the quote on the non-profit blog mentioned above were true, it would be that these organizations would be exempt from requiring a release from using a photo of someone because they are non-profits. As you can imagine, any one of these organizations may or may not be supported by everyone in the country, so could it really be that they could use photos of anyone they wanted for any reason, without their consent? That's an easy "no." Imagine how upset you would be if a non-profit that advocated a cause you don't support were to use a photo of you in an ad.

This is what federal and state statutes are there for: to prevent this sort of unfettered use of people's likenesses. Nowhere does any statute state whether "money" as anything to do with any of these transactions or companies.

But, don't let this reality jolt make you think that all non-profits have to get releases for all photos they use. And since non-profits are treated identically to for-profits, it may even be more surprising to learn that for-profit companies don't necessarily need releases for all the photos they use in ads either. And this potential lack of a need for a release lies in an infrequently-read subsection (e) of the same California Code 3344, which reads:

The use of a (...) photograph, or likeness in a commercial medium shall not constitute a use for which consent is required (...) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the photograph or likeness was so directly connected with the commercial sponsorship (...) as to constitute a use for which consent is required (...)

In other words, the person has to look like they are somehow advocates or sponsors of the underlying product or service. In the simplest case, just because a website, magazine, newspaper, or newsletter may have ads in it does not suddenly trigger the need for a release from the people who may happen to be in photos on the same page. Just having a photo of someone is not the test -- it's whether there is an implied association (or affiliation) between the person/people in the photo and the "user" (publisher) of the photo, or the advertiser. (Hint: you see ads on the same page as articles in newspapers. That's no different than ads on a web page that happens to have editorial content and photos of people. Readers know the difference between an ad and an article, at least in most mainstream publications.)

Obviously, this is highly subjective, as well as highly-dependent on the given photo and the given use. All of this is entirely (and somewhat arbitrarily) up to the whims and opinions of judges. Not that there's anything wrong with that. But, it's this lack of specificity that allows people's assumptions to lead them astray.

In effect, this new understanding of subsection (e) introduces a brand new view that you probably didn't expect: just because someone is recognizable in a photo and that photo is used in an ad, it does not necessarily trigger the need for a release. Subsection (e) states that the person in the photo must appear to be "directly connected with the sponsorship." If you were to have a close-up photo of a person looking directly into the camera with text over his face saying, "I have AIDS," the implied between the person in the photo and the organization is pretty strong. However, a photo of a local band that happened to be playing at an outdoor event that happened to benefit the non-profit could show up in a newsletter to members with a far less likely need for a release. Is there an implied association? Perhaps, but it's far more benign and less likely to be objectionable to the band members (or they wouldn't have played the gig in the first place).

Between those two endpoints is an infinitely large number of possibilities for how someone might look as to determine whether they are "directly connected" to the published use of the photo, and whether that person would be likely to object.

And it's that analysis that leads us to real-world events and how they often don't reflect academic discussion, or even the laws themselves. This is why most non-profits don't think or care about having releases: most of the time, nothing happens and no one cares. But it's still important to mention, because the law is the law, after all.

In conclusion, despite the fact that this was about non-profits, it turns out that they aren't different than any other organization. What this topic is really about is what is meant by "commercial use." It's not what people think -- that money is made or has changed hands because someone's likeness was used. Privacy and publicity laws are written to address people's rights as to how they are represented, and whom they can be implicitly associated with, regardless of whether money plays a role. If a company violates those rights by publishing an unreleased photo that can imply an association, _then_ it becomes all about money. Theirs.