Take success into consideration
by Matthew B. Harrison, Esq.
SPRINGFIELD, Mass — A key aspect of my job as a manager of talent and attorney is to development plans that not only include business and legal components but also take into account the possibility that the projects we are planning might, in fact, become successful. If the pursuit of success is what drives us – then shouldn’t we have a plan that takes the possibility of success into consideration? This is especially important when things involve other people, facilities owned by employers, components from the internet, and so many potential legal and ethical entanglements. It is amazing how often people don’t stop and consider this went entering into plans.
Consider this recent example that dominated twitter trending the past few weeks:
Rebecca Black, 13, recorded a song and music video (called “Friday”) in collaboration with a company specializing in vanity productions. Black’s parents contributed financially to the project, to ensure that they retained all rights in the song and the video, along with the original masters (as allegedly detailed in their initial contract).
The importance of registering copyright
By Matthew B. Harrison
NEW YORK –– Copyright law protects your intellectual property immediately upon the fixation of a creative work in a tangible form. However, in many circumstances it is desirable to additionally register your works with the United States Copyright Office; especially if you want to maintain the ability to sue for significant damages.
Although copyright attaches to a particular work upon its fixation in a tangible media (a tape, a CD, a file, etc.), you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office. One can always register the copyright just prior to suing, however there is a major advantage to registering the copyright within three months from the date of first publication, or at least prior to the date of infringement: The ability to collect statutory damages. If you do not register your copyright within three months of initial publication, or before the date of the infringement, one would only be eligible for actual damages –– which are difficult to prove and may only be nominal in amount.
To see how this plays out, assume that I have created an amazing spoken-word audio program and posted it on a website without registering the copyright. Since the audio program is an original work fixed in a tangible form (a playable file) it is protected by copyright. Therefore, if someone from another website comes and copies the file and places it on their website, my copyright has been infringed. In order for me to sue, I need to register the file with the Copyright Office.
Be careful what you post on websites that sell advertising
by Matthew B. Harrison, Esq.
NEW YORK –– Most of us have seen the recent YouTube clip of a woman falling into a fountain at a mall while texting (now dubbed “the fountain lady”). This bit of slapstick reality has attracted millions of views, many duplicates, and even commentaries, remixes and faux interviews. It’s another viral video success and those who boarded that train early are even making money from the ad revenues. But is it legal?
The background involves some mall security employees posting video footage of a fellow female employee falling into a fountain online, while sharing their own “director” commentary while they playback and repeat the video from their security office. With more than three million views in less than two weeks, it spawned many other YouTube videos with their own commentary and creativity. Radio has certainly picked up the story and generated its own share of commentary both on the air and on the web. The identity of the woman was –– at this point –– unknown to the public.
However, this changed when the employee “outed” herself as the person featured in the video. She is threatening lawsuit that someone in security should have come to her rescue instead of laughing at her misfortune. One lesson is quite clear –– it’s easy to be so consumed in our digital devices that we fail to pay attention to our physical surroundings.
NEW YORK — As media technology advances, our legal system tends to lag behind. Old rules governing new situations as interpreted by judges who aren’t exactly on the leading edge of these advances, is often a recipe for disaster. To apply existing rules to the internet requires a liberal (as in “not limited to or by established, traditional, orthodox, or authoritarian attitudes, views, or dogmas”) interpretation. This same interpretation as it could then be applied to terrestrial radio could prove problematic.
In New York, defamation suits revolve around what the average person reading or hearing a communication would take an alleged “false statement of fact” to mean.
The average person, at the time this law was drafted, was probably a very active terrestrial media consumer. However, now with the courts being inundated with internet based communications matters, the average person who is consuming internet media is becoming the standard in which all rules apply.
By Matthew B. Harrison, esq.
PhotosAndTheLaw.com
Last month, this column detailed the four factors of the fair use defense to copyright infringement. The prior column addressed how to use the provisions of the Digital Millennium Copyright Act in order to protect your audio (and video) from misuse. Both of these articles generated enough reader feedback and follow up questions, that it seemed like a good idea to provide a summary article with some additional clarifications.
The first two, and the most straightforward, of four factors of a fair use defense to copyright infringement are:
· The nature of the copyrighted work; and
· The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
and the two that led to the most follow up are:
· The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; and
· The effect of the use upon the potential market for or value of the copyrighted work.
THE INTERNET AS A DOUBLE EDGED SWORD
Protect yourself while getting the most out of the promotional opportunities
By Matthew B. Harrison, esq.
PhotosAndTheLaw.com
How many of you have your own website that showcases your photography? How many of you use other websites – such as myspace, deviantart, webshots, flickr, etc – to display your work? The Internet can be an amazingly inexpensive way for you, as a photographer, to 1) be able to showcase your work and 2) hopefully bring in potential business through these self-promotional efforts. However, before you run out and get yourself a website to showcase your images, I would like you to think about protecting yourself and your property, so that you do not end up falling into the group that answers affirmatively to the next question.
Of those who do display their work online – how many of you have had the pleasant experience of surfing the web and seeing your image somewhere without your permission? Unfortunately, it happens more than any of us would like to admit and you need to be aware of this phenomenon so that you can adequately protect yourself.
Copyright: How much is too much – in terms of avoiding liability.
by Matthew B. Harrison, Esq.
PhotosAndTheLaw.com
In my legal practice, I focus on the unique legal issues facing photographers and artists. Lesley Arak of FNS Studios in Springfield asked me recently an interesting copyright related question that I felt would provide interesting fodder for an article. The question was “If I wanted to recreate a famous photograph, and I hired a model, a stylist, acquired the right outfit, and created an image that looked a lot like the original – would I be in violation of the original photographer’s copyright?”
In thinking about the answer, even more questions arose in my mind. Would it make any difference if the original image were not a photograph at all – but perhaps a drawing or painting? What if the original photograph was not of a person – but rather was of a location or an object – would it matter if a photographer took a similar picture of the same subject matter?
THE LEGALITY OF URBAN EXPLORATION PHOTOGRAPHY
The difference between legal, unpublishable, and jail time
By Matthew B. Harrison, esq.
PhotosAndTheLaw.com
I recently gave a presentation at the Hallmark Institute of Photography on various legal topics that were of interest to the photography students there. Prior to the presentation, I had posted to some of the student message boards asking some of their legal concerns so that I could address them in my talk. One of the most asked about topics surrounded the legality of photography while urban exploring, or more simply: can I use the images that I took while breaking into that abandoned building? Seems that even though they are training to be professional photographers (who primarily shoot in studios) – some of them have become adventurous and are curious about potential liability. I figured that there may be more than just the students of Hallmark interested in such a topic – so I am devoting this column to just that.
