PHOTOGRAPHY & THE LAW : Reading & Understanding Your Rights

Posted by Mickey H. Osterreicher — 8 Feb 2012

I started to write the latest installment to my blog on 1/30/12 with these words - "when I started writing I had only intended to do a blog a month or one every two weeks but so much happens every week that I feel the need (and will do my best) to write at least once a week so that some things don't get old." A week later so much has gone on that needed immediate attention that I am just now getting back to it and you.


New Age of Technology by Brianna Rivera

Two weeks ago I was in NY to participate in a panel discussion entitled "Newsgathering Practices and Issues in the Digital Communications Age." One of the areas we touched on were the use of cell/smart phone as reporting tools along with the dangers and advantages of posting on social media websites

That led to the case of AFP v Morel, in which Daniel Morel, a photographer in Haiti during the 2010 earthquake, uploaded some of the first photos of the disaster to TwitPic.com by linking them to his Twitter account. He claimed that because of the country-wide devastation of electricity and Internet connections he was forced to use this more public method.

In the lawsuit, Agence France Presse (AFP), sought a declaratory judgment that it had not infringed upon Morel's copyrights. Without getting into the complicating issues of the case (which you can read about on your own) suffice it to say that Morel claimed that AFP distributed his images without his permission, while AFP argued that in posting his photos Morel had agreed to Twitpic's terms of service, which in turn provided AFP with a license to distribute those images.

As a cautionary tale about just how important it is to read and understand any Terms of Service (TOS) before clicking "agree" read the following, which were the Twitpic TOS at the time that Morel uploaded his images: "by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels."


Cell Phone Paparazzi by Zach Hoffman
You should also read the current TOS which have been substantially modified, due in large part to this case.

For those of you who might not have heard this before. It is crucial that you read any and all agreements before signing them. Would anyone agree to buy a car or a house without knowing such things as what kind of car? The address and description of the real property (house and land)? How much it will cost? What the interest rate will be? How many payments? Any penalty for early payment? The same is true when making agreements on the Internet. There may be no written signature involved but by clicking the radio button marked "agree" or "continue" or just by using the service you are agreeing to be legally bound to the terms and conditions set forth in that agreement in the same manner as if you signed your name in ink on a paper contract.

An important difference is that on almost all paper contracts in writing, the terms and conditions are set forth within the "four corners" of the documents that makeup the agreement and may not be altered, modified or changed unless agreed upon in writing by both parties. BUT if you read most digital agreements found on the Internet they state: "This policy may be updated from time to time for any reason; each version will apply to information collected while it was in place. We will notify you of any material changes to our policy by posting the new Policy on our Site. You are advised to consult this Policy regularly for any changes." That means the responsibility is on the user to make sure that they stay abreast of any changes to policies or terms of service rather than assume that the Site will inform them. Additionally most Sites have two (2) separate areas to read. The first being the "Terms of Service" (TOS), "Terms & Conditions" (T&C) or just "Terms" and the other being a section called "Privacy" or "Privacy Policies." They are almost always found as a clickable link at the bottom on the webpage.

Continuing to review the Twitpic TOS (just as an example because we started there and not because it is better or worse than any other Site) I will do my best to generally explain what most terms mean BUT once again must stress that if you are unsure of the terms of any Site you should consult with a competent attorney in your city or state who practices in the field of contract law and intellectual property rights.

"By using Twitpic.com, you signify that you have read, understand and agree to be bound by these Terms and conditions" should be very self-evident language that sets forth what I explained above.

"You agree to indemnify and hold Twitpic, its officers and employees exempt from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, transmit, post or otherwise make available through Twitpic" this means that should Twitpic or anyone associated with them be sued for any reason due to any actions on your part in your use of their service they are entitled to have you pay for an attorney to defend them and also pay for any fees or damage wards that they are liable for. This can sometimes be an astronomical amount.

Additionally under the "Choice of Law and Forum," should a legal claim arise between you and Twitpic, that case shall be heard in a Dover, Delaware court and be decided under Delaware law no matter where you live or reside, which can be a major inconvenience for you by itself. Also under the "Statute of Limitations" any legal claim you may wish to bring "must be filed within one (1) year after such claim or cause of action occurred or you will be absolutely prevented by law from suing Twitpic.

If you are the actual owner of certain content (images), then you retain the copyright to that content BUT "by uploading content to Twitpic you give Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites." That "grant" is further defined as "worldwide," (for use anywhere in the world), "non-exclusive" (meaning you may give others permission to use your content, not just Twitpic), "royalty-free" (meaning they do not have to pay you anything for the use of the content), "sublicenseable and transferable license" (meaning that Twitpic may in turn license your content to someone else while still retaining the right to the content for themselves or may transfer the right to your content to someone else without retaining any rights to it; in any event they may also be paid for the rights they are granting without having to pay you).

With that permission from you, Twitpic may: use, reproduce, distribute, prepare derivative works of (alter your content), display, and perform your content in connection with what Twitpic does as a business along with what Twitpic's other affiliated businesses or successors (should they sell or transfer the company) do. They may also use your content to promote or redistribute part or all of their business in any media formats (such as DVD) and through any media channels (such as movies and television).

By agreeing to the terms you are allowing other Twitpic users a non-exclusive license to access your content on Twitpic as well as to use, reproduce, distribute, display and perform such content as permitted under these terms. Once you remove or delete your content from Twitpic, the company must also stop using it in "a commercially reasonable time" BUT if they have already granted someone else a sub-license to use, reproduce or distribute your content prior to your actions that person may still retain perpetual and irrevocable permission to continue using your content.

Even after removal Twitpic may retain, "but not display, distribute, or perform," server copies of your media that have been removed or deleted in case a later legal issue arises. Additionally, any comments you submit to Twitpic may be used by them forever and you may not revoke such permission.

They also set forth the procedure for addressing alleged copyright infringement claims and for disputing those claims pursuant to the Digital Millennium Copyright Act ("DMCA') and that if you fail to "comply with all of the requirements" as stated your claim or counter-claim may be invalid.

One last thing before moving on (and we do need to move on) - for those who don't already know the Twitpic case now involves Getty Images, while other news organizations such as CNN, ABC and CBS (who also used Morel's images) have already settled with the photographer for "undisclosed amounts." More legal papers are expected to be served by April with a trial scheduled for this summer.

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After the panel in NY I traveled to Washington DC and spoke at the National Press Club regarding the "Ongoing Assault on the Right to Photograph/Record in Public" where I spoke about the ongoing tension between the press and government regarding news coverage of matters of public interest. It was very well received but that night I had a much tougher crowd when I did a 4 hour training with about 40 officers at the D.C. Metropolitan Police Department Training Academy. As you might expect they were very skeptical at first but eventually warmed up after viewing a number of videos that I had collected showing what police officers should not do when faced with someone with a camera. With the assistance of PIO Gwendolyn Crump I believe we were able to create a better awareness of the First (speech/press) and Fourth (search & seizure) Amendment rights of citizens and journalists.

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for MOtape training.JPGOnce back home there was a new flurry of activity, incidents and arrests involving NPPA members (photographers) throughout the country. In Florida police arrested Steve Horrigan as he was filming a traffic stop with his cellphone. He was charged with the interception of oral communications and also "Resisting officer without violence to his or her person." Steve's cell phone was also seized "as evidence." I had conversations with North Port Police Department Chief Kevin Vespia and hope to have a resolution to that matter sooner than later. Meanwhile in Memphis an ABC24 photographer allegedly had his video deleted by officers who detained him for recording police writing parking tickets. I expect to hear back from Memphis Police Director Toney Armstrong this week.

The ongoing issue of interference with the press by NYPD officers was back in the news as a coalition of media groups including NPPA, sent another letter to the Deputy Commissioner for Public Information. We received an almost immediate reply after waiting almost 2 months since the last letter sent. To round out the week, well-known blogger (Photography is Not a Crime) and NPPA member, Carlos Miller was also arrested while on assignment covering an Occupy Miami protest. Aside from the unlawful arrest he believes that officers deleted some of his video clips while the camera was in their custody. As you may note from some of the links Carlos and I work very closely together as he is a clearinghouse for reports of incidents like these around the country.

These are just a few of the reasons that I believe that the war on terrorism has somehow morphed in to war on photography. It is something that I deal with on a daily basis but I don't want it to be my sole focus for this blog. That's why I think it so important that I hear from you as to what issues you'd like me to focus on and discuss and what questions you would like me to answer. Just let me know and I'll gladly do it as soon as I can catch my breath.

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