How can photographers protect themselves from being sued?
Best protection is to learn a little about copyright law in whatever country you are doing your work. In the US, for example, things that are predominately functional cannot be copyrighted. For example, the design of clothing. But if you have a model in a shirt with an Andy Warhol painting on the front, then that would be trouble.
When in doubt, get a signed property release, just like you hopefully already do for model releases.
Also, if you are self-employed, hopefully you already have comprehensive business liability insurance. This often covers copyright infringement.“Insurance is available for virtually any risk. Bruce Springsteen insured his voice and Jamie Lee Curtis her legs. When Kerry Wallace shaved her head to promote the Star Trek films, she bought insurance in case her hair failed to grow back. Food critic Egon Ronay insured his taste buds. And an amateur dramatics group took out insurance to protect against the risk that a member of the audience might die laughing. Most people, however, get by with six different types of insurance: property, life, health, disability, liability, and automobile.” (Cengage Advantage Books: Introduction to Business Law, Page: 579)
What steps should I take if my photo is used without permission?
First, politely request that the photo be (a) credited or (b) taken down. If it has been used in a commercial sense, you could also include an invoice for an amount you feel comfortable charging.
If that doesn’t work, then try a firmer reply, including an extract from the part of the terms and conditions that have been breached, and mention that you will be taking legal advice if they do not comply.
At this point, if you’ve still had no joy, you could do one of two things: contact a lawyer and ask them to send a letter on your behalf. "If you do hire a lawyer, be aware of certain warning signs. Although the lawyer's goal is to protect you, a good attorney should be a deal-maker, not a deal-breaker. She should help you do what you want and, therefore, should never (or, at least, hardly ever) say, “You cannot do this.” Instead, she should say, “Here are the risks to this approach” or “Here is another way to achieve your goal.” (Cengage Advantage Books: Introduction to Business Law, Page: 208)
Failing that, you would probably have to go to the small claims court, to claim for non-payment of your invoice
"Anyone who uses copyrighted material without permission is violating the Copyright Act. To prove a violation, the plaintiff must present evidence that the work was original and that either:
•The infringer actually copied the work; or
• The infringer had access to the original and the two works are substantially similar.
Damages can be substantial. In a recent case, a jury ordered SAP to pay Oracle $1.3 billion for copyright infringement of Oracle's software." (Cengage Advantage Books: Introduction to Business Law, Page: 507)
What are the legalities of accepting payments as a freelance photographer?
While it is possible to run a business as a sole proprietor (rather than creating a legal entity), I would recommend at the very least to get a separate checking account that she will use only for the business.“A sole proprietorship is an unincorporated business owned by one person. For example, Linda runs ExSciTe (which stands for Excellence in Science Teaching), a company that helps teachers prepare hands-on science experiments for the classroom.” (Cengage Advantage Books: Introduction to Business Law, Page: 373)
I would also recommend that your friend get a copy of quickbooks. She should produce invoices for her customers and bill them. The invoice should indicate the timeline for payment (net 30 days, upon receipt, 50% in advance, 50% upon delivery, etc.).
All cash flow (expenses and revenue) should go through the one bank account. This will make it easy for her to reconcile her taxable income and other needs at the end.
In terms of technology, check out Square. It has a low cost device that hooks to ipad / iphones that allows her to charge credit cards. This should be hooked to her bank account discussed above.
"The “method” refers to whether acceptance is done in person or by mail, telephone, email, or fax. The “manner” refers to whether the offeree accepts by promising, by making a down payment, by performing, and so forth. If an offer demands acceptance in a particular method or manner, the offeree must follow those requirements. An offer might specify that it be accepted in writing, or in person, or before midnight on June 23. An offeror can set any requirements she wishes. Omri might say to Oliver, “I'll sell you my bike for $200. You must accept my offer by standing on a chair in the lunchroom tomorrow and reciting a poem about a cow.” Oliver can only accept the offer in the exact manner specified if he wants to form a contract." (Cengage Advantage Books: Introduction to Business Law, Page: 156)
Is it legal to sell a photo of a hotel building or a sign of a public market?
1st best answer: To try and answer the question succinctly: yes it is legal to sell the photos, because you have copyright, but they may not be publishable depending on who buys them.
2nd best answer: Yes you can sell the photographs to whoever wants to buy them.
The problems are encountered when the images are used commercially in some design material or in an advertisement.
If an illustration of one of my photographs is made and used commercially or editorially, is it an infringement of my copyright?
Yes, if it is deemed to be a derivative work and the illustrator has copied your copyright-able elements."A work is copyrighted automatically once it is in tangible form. For example, when a songwriter puts notes on paper, the work is copyrighted without further ado. But if she whistles a happy tune without writing it down, the song is not copyrighted, and anyone else can use it without permission. Registration with the Copyright Office of the Library of Congress is necessary only if the holder wishes to bring suit to enforce the copyright. Although authors still routinely place the copyright symbol (©) on their works, such a precaution is not necessary in the United States. However, some lawyers still recommend using the copyright symbol because other countries recognize it. Also, the penalties for intentional copyright infringement are heavier than for unintentional violations, and the presence of a copyright notice is evidence that the infringer's actions were intentional." (Cengage Advantage Books: Introduction to Business Law, Page: 506)
How can I get permission to use copyrighted photography?
You may obtain a non-exclusive license from the copyright owner orally, but exclusive licenses must be in writing. It’s always best to put license agreements in writing, even if it’s only an email.
If you are shooting a movie/photo (non-profit or profit) with a willing person, should you get a contract signed from him/her?
1st best answer: Whenever possible you should get a model release (or a contract with a model release clause) from anyone who appears in your photos or video, this can save a lot of trouble in the future and has no downside.
2nd best answer: If you do not have a release (for property, too.) your images are unusable. You cannot display them in public. You cannot use them in your portfolio. You cannot use them.
"Contracts govern countless areas of our lives, from intimate family issues to multibillion dollar corporate deals. Understanding contract principles is essential for a successful business or a professional career and is invaluable in private life. Courts no longer rubber-stamp any agreement that two parties have made. If we know the issues that courts scrutinize, the agreement we draft is likelier to be enforced. We thus achieve greater control over our affairs—the very purpose of a contract." (Cengage Advantage Books: Introduction to Business Law, Page: 158)
Will electronic or digital model releases or contracts hold up in court?
For the most part, whether you're a business generating digital documents to be signed, or a consumer signing them with a mouse click, the answer is a definitive yes.
The U.S. government actually took the biggest step of resolving the legal issues of e-signatures back in 2000 with the ESIGN Act, which gave electronic signatures the same legal weight as handwritten ones. State law, for the most part, has followed suit in recognizing their validity.
What are the appropriate laws regarding taking candid or unsolicited shots of people in public places?
1st best answer: The gist is that with very few exceptions such as military installations you can photograph anyone and anything you see in public where people have no expectations of privacy. Images taken this way belong to you.
What you can do with these photos is quite restricted because the image in the photo belongs to someone else. Because of this you cannot use such images for most commercial purposes, including licensing such images, selling prints of it or making advertisement from them. You can use these images for editorial use. See the above link for what constitutes editorial use.
2nd best answer: You certainly can take those photos. It is your legal right. If they are out in public, there is no assumption of privacy.
However, you are limited in what you can do with those photos. You can not publish or sell them without a signed model release.
What are the most important issues to cover in a portrait photo contract?
· What's included in the price and what's not. Even if the session fee is waived, are the prints and/or images included? Or are they for extra purchase? If so, at what price
· How long you will retain the images for purchase/download/whatever. Will you hang onto the images for a year? more or less?
· Will photo editing (beyond basic cropping/color balance/basic touchups) be included or be at extra charge? For example, if a client wants you to remove an undesirable element from the background, etc.
· How many images the client can expect? I usually give a range.. for example, for an N minute session, you can expect x-y images.
· What kind of turnaround time clients can expect (do you turn over the photos in 24 hours, 1 week, 2 weeks, etc)
· If clients can buy/download digital images, what kind of rights do they have? You might want to specify personal use.
“A contract is merely a legally enforceable agreement. People regularly make promises, but only some of them are enforceable. For a contract to be enforceable, seven key characteristics must be present. We will study this “checklist” at length in the next several chapters.
• Offer. All contracts begin when a person or a company proposes a deal. It might involve buying something, selling something, doing a job, or anything else. But only proposals made in certain ways amount to a legally recognized offer.
• Acceptance. Once a party receives an offer, he must respond to it in a certain way. We will examine the requirements of both offers and acceptances in the next chapter.
• Consideration. There has to be bargaining that leads to an exchange between the parties. Contracts cannot be a one-way street; both sides must receive some measureable benefit.
• Legality. The contract must be for a lawful purpose. Courts will not enforce agreements to sell cocaine, for example.
• Capacity. The parties must be adults of sound mind.
• Consent. Certain kinds of trickery and force can prevent the formation of a contract.
• Writing. While verbal agreements often amount to contracts, some types of contracts must be in writing to be enforceable.” (Cengage Advantage Books: Introduction to Business Law, Page: 143)
"Business people sometimes refer to their lawyers with terms like business prevention department. They may be reluctant to ask an attorney to draft a contract for fear of the time and expense that lawyers can inject into the process. And they worry that the lawyers will interfere in the business deal itself, at best causing unnecessary hindrance, at worst killing the deal. Part of the problem is that lawyers and clients have different views of the future."
(Cengage Advantage Books: Introduction to Business Law, Page: 208)
