Know Your Rights

U.S. PJs take media law courses in college to learn their rights and responsibilities. In the past, I've considered it redundant to post this information on this blog.

However, after a particularly annoying incident today in a public park, I've determined many people are either ignorant or are just control freaks. So, here is a link to the ACLU's "Know Your Rights" post for photographers (it covers the same information posted in 2005).

In general, if you are standing on public property and not impeding emergency or police activities, you can shoot whatever you can see. It's a Constitutional right for every person standing on U.S. public property. There's no debate.

If you don't want photos of yourself or your objects, don't be within plain sight of public property. The Constitution is the basis for - and thereby trumps - all other laws.

Enough for now,

U.S. v. U.K. libel laws

The United States' libel laws provide more protection for publishers than United Kingdom laws. Libel laws were originally considered the domain of press owners. Now, anyone has access to worldwide distribution of their words and images through the Web. Therefore, everyone is "the press" and subject to libel law.

In the U.K., a story only needs to be published, defamatory and directly, or through innuendo, name an individual for the plaintiff to win - even if the facts are provably true.

In the U.S., nobody can win a libel lawsuit if the published information is true. Even if the facts aren't true, public figures must still prove negligence to the jury.

In 1735, (New York) Attorney General v. John Peter Zenger established truth as a defense in (Colonial) libel cases. I'd say Andrew Hamilton's closing argument rocks, but it's closer to Bach (Abel to be more accurate).

While Zenger got off the hook, the decision didn't affect common law applications of libel in America or England. These cases remained in state courts until a Civil Rights movement case worked its way to the Supreme Court.

In 1964, New York Times v. Sullivan determined public figures, those who "invite attention and comment," must establish actual malice with "reckless disregard for the truth" to win a libel claim. This was strengthened by Gertz v. Robert Welch, Inc. in 1974. The Gertz case established fault (negligence) is also required in cases of public concern.

Other journalistic protections in the U.S. include privilege during governmental proceedings or in government records as well as fair comment, which is an "opinion" rather than a provable fact. The fair comment protection has limitations, so it isn't a universal shield - nor should it be.

Soon, we'll discuss the concept of public figures as it applies to stock photography. Politicians, celebrities and professional athletes are legally "safe" subjects for stock photographers. Consequently, these are the only images some stock companies make available for publication. This policy has created a corrosive influence in news and public discourse.

Enough for now,

Don't get Orphan Works apathy

It's time again to take five minutes and fill out an e-mail petition to your senators and representative. Simply enter your name and address and the program will generate and send the e-mails to the correct legislators.

The NPPA and various other creative arts groups request the participation of everyone who has ever earned any income via copyright (or plans to do so). Senate bill 2913 and House of Representatives bill 5889 are being introduced for a vote this session.

This means your attention and letters are needed now since Congress didn't listen in April.

We previously discussed this so-called "Orphan Works" legislation on 16 March 2006 and again on 21 Nov. 2006. Furthermore, plan on jumping through these same hoops for the remainder of your career.

While some people want us to believe a kindly, grey-haired librarian wants to show children prints from the 1920s, don't believe them. Librarians don't have the money needed. This legislation is being pushed by people with deep pockets to buy lots of lobbyists and push this through during each session.

I'm certain Leahy didn't want his name to appear on this Senate bill. Consequently, he named the bill after the late Shawn Bentley, a lobbyist and Time Warner vice president of intellectual property and global public policy.

When did Time Warner start caring about librarians' ability to use photos commercially?

In short, it's reasonable to believe telecom giants are trying to get control of the images they're holding on their servers and moving through their routers. Furthermore, they would love to use them payment-free for advertising purposes and let you get sued. Additionally, this latest legislation shifts the burden of proof of income from the infringer to the photographer.

You don't need to look deep to find the reason this will be a recurring nightmare for visual artists and PJs worldwide. Simply look at the sponsors of the bills (and memorize them for election day).

Senate:
Sen. Patrick Leahy (D-VT)
Sen. Orrin Hatch (R-UT)

House:
Rep. Howard Berman (D-CA)
Rep. Howard Coble (R-NC)
Rep. John Conyers (D-MI)
Rep. Lamar Smith (R-TX)

I'm certain these fine gentlemen of Congress have interesting cooperation on other Washington matters. Please feel free to put your journalistic skills to the test and ferret out which dots might connect.

The second name on this list tells me much. Search for "Orrin Hatch lobbyist," and you'll learn his son, Scott D. Hatch, is a successful lobbyist for Walker, Martin & Hatch according to SourceWatch (the Center for Media and Democracy). The younger Hatch lobbies for telecom companies.

Also according to SourceWatch, "Jack Martin was 'a veteran' of Senator Orrin Hatch's senate staff..." and Walker retired from Qwest Communications International Inc.

I'm certain the Hatch family might say this is coincidence. It's also a coincidence when SourceWatch reports, "in 2002, the firm reported a lobbying income of $930,000, with most of the fees 'paid by companies and groups that count on' Senator Hatch for support."

This is why I'm saying it'll be an ongoing war until there's no money left to buy votes.

So my gentle PJs, get accustomed to combating these so-called "Orphan Works" bills each spring and fall. They're going to be around for the remainder of your career unless you decide to stop petitioning.

We can't waiver or become apathetic and let our images be stolen for commercial use without a fight.

Enough for now,

UPDATE: 9/19/08
I got the following reply from Sen. Kay Bailey Hutchison

Thank you for contacting me regarding copyright protection. I welcome your thoughts and comments on this issue.

Copyright protection has been central to America's prosperity and job creation. Movies, books, computer software, television, photography and music are among our unique American products and some of our most successful exports. United States industries depending on copyright protection employ nearly 4 million workers and produce over $65 billion of our exports - more than agriculture and automobile manufacturing.

Protecting content in a high-technology age is a new and daunting problem, and copyright protection is an important challenge as the broadband revolution offers even more far-reaching possibilities and opportunities. With new speed and interactivity, the entire store of movies, music, books, television and raw knowledge can be made widely available. I believe copyright protection is a foundation of innovation, and copyright law should work to ultimately protect the best interests of consumers. Intellectual property is the creative core of the information age. I will keep your views in mind should the Senate consider legislation addressing this issue.

I appreciate hearing from you and hope you will not hesitate to keep in touch on any issue of concern to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

While it sounds good, the line, "...and copyright law should work to ultimately protect the best interests of consumers," concerns me.

This could be read either way. I'm optimistic and read it to mean consumers have more options because we keep our copyright. Telecom companies may read it to mean they get my copyright to provide my images for free to their customers.

If my work is stolen, I couldn't afford to create new work. If Congress allows this theft to happen, professional images of our combined human experience will effectively end on the day the bill gets signed.

UPDATE: 9/26/08
The Senate reports,

"Sep 26, 2008: This bill passed in the Senate by Unanimous Consent. A record of each representative's position was not kept."

So much for optimism (and hopefully incumbancy).

St. Paul wants no press freedom

On the heels of Denver's lack of police control, St. Paul's cops more closely resemble a foreign country while they protect the Republican National Convention delegates from words chanted by protesters.

Those Constitutionally-protected words can hurt. The RNC delegates might be delicate. However, those words don't hurt working journalists nearly as bad as being gassed, pepper-sprayed or slammed face-first into a wall by a cop.

According to an Associated Press report, Matt Rourke, an AP photojournalist and close friend of mine, was arrested along with Democracy Now! anchor Amy Goodman (see the video of her arrest) and her colleagues Sharif Abdel Kouddous and Nicole Salazar while covering an anti-war protest march on Monday, Sept 1, 2008.

All were later released and the county doesn't plan to file charges against Rourke or Goodman. Kouddous and Salazar were both injured and face felony charges of suspicion of rioting.

Exercising active prior restraint on working journalists and violating Constitutional rights is a tactic best left in other countries. This is the United States. Journalists have degrees and Secret Service clearances.

We cover the protests to show those without a voice as well as the peace maintained by the police. If the police officers are cool, it's documented. When the cops abuse power, it's also documented.

The only reason for this behavior is an attempt to create a chilling effect of protest coverage. The cops are saying to all media, "Cover the protests, and you're in jail."

I know for a fact that Matt is a squeaky-clean guy. He's a quiet, clean-cut dude. He works hard and has suffered through many hardships to bring the news to everyone. He freelanced at DMN when I was a staffer. He moved to The Austin-American Statesman and won national awards for his Hurricane Katrina coverage and finally was hired by AP in Philly.

He's a good guy with a great eye. I know he wouldn't have done anything that would get him arrested in any other city in America.

The day before these arrests, a Pioneer Press story reports the police conducted preemptive raids at homes on Sunday before the RNC started. Ironically, the raid photo is by Matt Rourke. The story states,

St. Paul Mayor Chris Coleman said Saturday that free-speech rights are separate from criminal behavior.

"We have worked very, very hard to make sure we've protected people's right to exercise free speech," he said. "To pick up a protest sign, that's fine. If you're here to pick up a brick or some other instrument, there's a problem."

Apparently, "other instruments" include cameras, notepads or microphones.

Enough for now,

ABC news producer arrested in Denver

If you need a (negative) adrenaline rush, watch this video.

The ABC crew was legally working on a public sidewalk outside the Brown Palace Hotel in Denver. According to the initial report, big money folks were meeting in the hotel and didn't want the public's attention. (Hint: don't meet in public view.)

The cops were called, arrived and then decided to violate the U.S. Constitution. According to the report, "...the arrest followed a signed complaint from the Brown Palace Hotel."

ABC News reporter Asa Eslocker and crew handled it well considering a Boulder County deputy pushed Eslocker into traffic. Another cop puts a hand on Eslocker's throat while he's handcuffed.

I know some police officers. They're good people, but this is wrong. I hope legitimate law enforcement professionals elsewhere speak out.

The crew was legal. Their actions are protected by the First Amendment. The cops broke the law.

What's happened to this country when city and county employees willfully violate the U.S. Constitution because someone meets in public view?

Here's a link to the elected officials of Denver.

Enough for now,



UPDATE: Sept. 2, 2008
I received the following e-mail from the Denver mayor's office,

Dear Mark:

On behalf of Mayor Hickenlooper, thank you for taking the time to write. Please be aware that we take allegations of excessive force very seriously and will investigate fully and that the Internal Affairs Division of the Denver Police Department, and the City’s Independent Monitor are both looking into the incident. As soon as we know the facts, we’ll provide more information.

Thanks again for sharing your concerns.

Regards,

Office of Mayor John W. Hickenlooper

Get insured

Insurance is a business issue most PJs want to avoid. It falls somewhere below root canal on a pleasure meter. However, we need it. So, let's understand it.

I've upgraded all kinds of insurance lately, so this information is current. Folks reading this in a few years need to check with their insurance agents.

Basically, insurance is legalized gambling. We're betting something horrible happens. Large corporations are betting it won't. The larger the amount at risk, the more money either side must ante up.

However, there are some caveats. First, almost all the money we pay is a business write off (auto and home are percentages). So, we get to reclaim most of our payments.

Second, there's no measuring the value of peace of mind when something bad could happen. If we have health insurance, we're far more likely to get a wide-angle shot of a gator or snake. Without insurance, it's a 300mm or longer moment.

The same peace of mind applies to where we drive, where we shoot, what equipment we use, where we park, who we invite to our home, etc. Essentially, every "freedom" we tend to enjoy as PJs is covered by some form of insurance. Yes, we can do whatever we want in America, but we are entirely responsible for the repercussions and expenses if something goes wrong.

Considering the PJ profession, it's wise to bet something will go wrong.

Auto liability insurance
In most places, auto insurance is required to operate a vehicle on the road. It's also most PJ's first experience with insurance.

For most staff PJs, it's a non-reimbursed job requirement (no insurance = no job). Some staffers get a monthly car allowance to cover some of the expense, but this has become increasingly rare.

Basic liability is required by state. However, new car loans often require full coverage. This costs quite a bit more, but it means the car will be fixed if it's damaged or replaced if it's totaled or stolen. It can also include provisions for medical expenses of occupants and security of equipment in the vehicle.

These risks become higher or lower depending on the PJ's location. However, auto insurance is already starting to overlap other insurance expenses and might reduce the costs of supplemental premiums (this is good).

Health insurance
Health insurance is often the reason most PJs prefer to be staffers. We know we're covered and can get semi-repaired or if something goes wrong. It allows us to take calculated risks at our job without too much fear.

This doesn't mean PJs with acrophobia won't be screaming like a monkey during a skydiving assignment. But if they shatter on impact, they don't have the additional worry of a $50K hospital stay, loss of income, etc.

For most PJs, this is the single most expensive form of insurance. Staffers have a significant portion paid by their employers, but still have a hefty portion taken out of their income. Meanwhile, freelancers are on the hook for the whole amount or have a beautiful, kind, loving spouse with good insurance paying the premiums for us. ;-}

Homeowner/Renter insurance
By itself, homeowner/renter insurance can be quite expensive. A low-value rental policy can cost more than $100. However, when it's purchased as a bundle with auto insurance it can actually cost less than the auto insurance alone.

It's unbelievable, but I'm living proof. It also means I have a full-service insurance agent, full coverage on two autos, good driving histories, are over a certain age, married, and so forth. But, it's possible to pay less for more insurance. Check with your local insurance agent for the best prices.

If you own the property, you need this insurance and are required by a mortgage contract to have it. Considering what I've photographed in my career, it's a good investment against something tragic.

For PJs, this is a partial write off for the business-use percentage of our home. We write off the same percentage of the insurance. However, it covers much or all of our home-based equipment and archives as well as claims against us if something happens to our home or someone gets injured at our home.

Again, this coverage overlaps into our business insurance needs.

General business liability insurance
When I went freelance, I knew I needed this coverage. If a staff PJ drops a camera on a pro boxer from the catwalk, the paper is on the hook for expenses. If a freelancer does it, it's a life-halting event.

Even something as simple as a person tripping over a wire or a light stand accident can become a career-ender for freelancers without this insurance. Consequently, don't consider mounting cameras and strobes in remotely dangerous locations without proper coverage.

Some cities have ordinances requiring this insurance before photographers are allowed to make images within the city limits - even in public places. While the Constitutionality of these ordinances might be questionable, it would cost more to legally challenge the ordinance than to pay the premium and have some peace of mind.

While this may sound like staffers can skate, they're skating on thin ice. If a staffer takes a freelance gig, it's not covered by the paper. They might try to sneak it in under the radar, but it could cost the staff gig in the long run.

Consequently, it's wise for staffers to purchase this insurance as well if they plan to accept freelance gigs.

Again, when it's bundled with other insurance, it's surprisingly reasonable. For about $30 per month, PJs (staff and/or freelance) could get about $300K liability, $20K business property theft/loss, $5K medical liability, $10K equipment breakdown, attorney's fees and actual losses sustained.

The price goes up as numbers increase, but it's still reasonable when bundled. Again, check with your local agent.

From my point of view, it's probably the best $30 I could spend as a pro PJ. It also makes my service more appealing to other businesses because they know I'm absorbing basic liability. If I'm dumb enough to drop a light stand on a new car, it's covered.

Property insurance
Property insurance covers all our equipment. While it's taken years for us to acquire all the gear we use every day, it can be gone in seconds.

Most gear is covered under auto, homeowner or business insurance, but it can be covered separately as well. Again, freelancers are on the hook for the whole amount of the gear lost if it's not otherwise insured.

Staff PJs normally have their gear covered on a company-wide program. Unless staffers want to replace everything out of pocket, it's critical to routinely update company records with equipment lists and serial numbers.

I keep a spreadsheet of all my equipment and serial numbers. Part of my workflow is to add all new equipment and serial numbers to the spreadsheet before I allow myself to use the equipment once.

Loss of Business insurance
This is catastrophic loss insurance. Wedding PJs in hurricane areas as well as flood and fire zones are most likely to consider this coverage.

This insurance is relatively inexpensive because it's a back-end rider on other policies and is often considered a "last resort" claim. It's also difficult for PJs to claim this insurance because the kinds of disasters that lead to this claim are exactly the kinds of disasters we typically cover.

So, PJs are likely to earn equal or greater income from alternative sources while other businesses lose all income. Traditional (studio) photographers and wedding PJs may want to still consider this option while primarily news PJs aren't as likely to pay this premium.

Errors and Omissions insurance
This is considered "special business insurance" for professionals. It's commonly purchased by technology professionals for protection from data liability (real or alleged).

It's also used by some photographers to guaranty delivery of professional services. Again, wedding PJs are far more likely to need this coverage than primarily news PJs. In a worst-case scenario a wedding PJ snowed into Buffalo might be happy to have this coverage while the nuptial service continues in LA without a photographer.

It won't help with the mother of the bride, but it might help return the PJ fees. I'm not sure if it would cover the bulletproof vest needed afterward. Again, check with your local agent. :-)

Travel insurance
Unless PJs are certain their insurance is universal, it normally stops the second a foot or tire crosses a border or the PJ boards most forms of interstate mass transportation. This is when travel insurance must be in place.

Staff PJs normally have this covered by the company. Be certain the company has plenty of supplemental insurance before pitching the story about guerrillas in the Peruvian Andes or Congo.

Freelance PJs must arrange travel insurance. This is a complete business write off. We'll hope freelancers already have a client before they take off to points unknown. The client pays these expenses as part of the invoice total. If not, the images are part of the freelance PJ's stock portfolio, so it's still a complete business expense.

No matter what, this is very important insurance.

Most frequently, PJs need all-inclusive international business insurance. This covers medical, dental, emergency evacuation, cars, property rentals, liability, trip interruption, cancellations, baggage, property theft, identity theft, loss of business, accidental death and return of body (funeral shipping).

These are sold for single trips or for multiple business trips over the course of a year (typically with total-time restrictions). There is also insurance to cover longer trips (more total or consecutive days), but these have much higher premiums.

Check with your local agent before dealing with an unknown national or international organization.

As with everything in this world, make sure the company has a reputation of delivering when needed. Research, research, research and remember to look for negative information posted on the Web. When your leg shatters in Peru, it's not the time to find out the emergency medical evacuation required pre-approval.

Life insurance
We're all going to die eventually. All PJs have the potential to die before expected.

Life insurance is the biggest gamble of them all. We're betting we'll die (a certain bet). The insurance corporations are betting we'll run out of money or change insurance carriers before it happens.

The most secure is staff PJ life insurance. It's typically paid by the company as part of the terms of employment. The company knows when you die, and human resources will help your family recover what's rightfully theirs.

The next most secure is "whole life" or "permanent life" coverage. Most PJs don't need this. It's far more expensive than term insurance. It's essentially a tax shelter for wealthy individuals. The policy collects interest and pays a tax-free, lump-sum death benefit. If you're already rich, go for it.

Term life insurance is best for most freelance PJs. It gets progressively more expensive as individuals age. Premiums also increase based on the amount of death benefit we request. Some PJs may want to think they're worth millions and millions. Unless they earn it annually - they're not.

Keep premiums reasonable by only purchasing the amount it would take to cover funeral expenses and keep your family as secure as if the PJ was still alive. Unfortunately, this isn't very much, but it's also fortunate because it means the premiums are lower.

It's vital to let the beneficiaries know about term life insurance policies. Term policies expire if they aren't paid - because the payer, you know, died and stuff. So, beneficiaries need to know how to quickly claim their prize. :-)

Final thoughts
Unfortunately, insurance is a bet we really don't want to win. It means something horrible happens to us or our property. For the sake of our business and loved ones, we must win this bet when the time comes. It's their future we're gambling.

Enough for now,

Use Assignment Confirmations

Most of my freelance clients have worked with me enough where my assignment confirmations consist of an e-mail stating, "Got it."

To me, "got it" means I have the assignment and agree to the usual terms. To them, "got it" means I'll do my best, turn in the assignment before the deadline, acquire required releases, and everything else required to complete the assignment to their satisfaction and get paid.

I've been at this a while, so "got it" works for me and most of my clients. We "get it." Newer clients and student PJs stepping into the pro world might not.

This is when it's appropriate to use an official Assignment Confirmation form. Technically speaking, this form is the first step in a PJ's workflow.

What's an Assignment Confirmation form?
An Assignment Confirmation form is a contract. It essentially states a publication (or commercial client) has contracted the services of a PJ to provide images. It spells out the price, rights, deadlines and other responsibilities for both parties.

If there's going to be a misunderstanding, it's much better to identify it a few minutes after the initial phone call rather than when the invoice is due.

When to use this form
If an assignment is immediate (deadline) AND with a regular client, this step can be skipped. Shoot, transmit and invoice as usual.

Otherwise, pro PJs use this form with each new client. It's a good, professional habit to always send a form when an assignment is accepted (with both new and old clients).

For newer PJs, it also acts as a focusing device while talking to a new client. By filling out the form while the client is on the phone, the PJ gets the most out of the phone call. The client knows the PJ is a professional and also gets a contract to show a supervisor.

Customer service
One advantage of this form is a customer service technique. It lets the client know the PJ is a professional, cares about the assignment and wants to get the information correct. It also establishes the business-to-business atmosphere and may yield higher payment than "standard rate," which is almost always negotiable.

For example, we expect to answer some questions and give some information when we call a cable company to have the service installed. The people we talk to are customer service representatives.

Photo buyers expect the same customer service. If they don't get this service, they may not feel as comfortable about the PJ's ability to deliver the service. We want clients to feel confident in their decision when they conclude the call. The form helps focus the conversation and follows with a written version of the conversation.

Parts of the form
Address blocks
Take a look at a blank Assignment Confirmation form. Feel free to copy and paste it into a word processor document and modify as appropriate. This is a complete form. If parts aren't necessary for a specific gig, delete those parts. However, read the notes below before it's stripped down too much.

The first section is the PJ's contact block. It lists an address and every imaginable way to contact the PJ if something goes crazy.

The second section is the client's info block. It lists how we'll contact the client in an emergency and where the images and/or invoice will be sent.

Form content
The first content section is the actual contract. It states the PJ and client made a verbal commitment and set the terms as acceptable. It also states the details of the assignment as the PJ understands the assignment (cut and paste the assignment slug if the client sends an e-mail).

The second section establishes who's who. This keeps the form flexible enough to use with multiple clients.

Amounts
Now we get to the guts of the deal. The first information we need to know is how much we're getting paid for the gig.

On the blank form provided, all blanks contain (XXX). On the actual form I use, I have real minimum amounts in these locations. If the client doesn't meet the minimum prices, our conversation is over unless it's some subject I'm salivating to shoot. If their budget is too low, I may refer them to someone who accepts gigs for less money (if the offer is insulting, I may suggest they call a day labor service).

If PJs already know their cost of doing business and Day Rate, it makes life easier. Plug these numbers into the form. Next, get the client up to the minimum numbers (or keep the PJ's mouth shut when the client offers more than an acceptable rate).

Guarantee
A guarantee is the price a PJ will be paid if nothing gets published. This is what the PJ is paid to cover time and expenses. It's often called a "kill fee." This means if the assignment is killed for any reason, the guarantee will be paid. Otherwise, PJs get the full space rate, which should be a much higher amount.

Space rates
While most newspapers pay a flat rate for shoots, several magazines pay space rates. These are amounts a magazine has budgeted per image on each page of editorial space.

In other words, legitimate magazine publishers already know how many advertising and editorial pages they'll have. They budget an amount per cover and for each inside image. Then, they find stock images or make assignments. Often this happens eight to 10 months before the publication date.

If a magazine editor calls and doesn't know how much they pay for space rate, be concerned. It means the magazine probably won't exist when it's time to pay invoices or the publication doesn't hire pro PJs often and will probably choke when you give them a legitimate price.

What's a day?
A "day rate" is how much a PJ charges for services. There are two kinds of day rates: travel and work.

Travel is a lower rate than work because nothing is produced. However, image buyers must pay for the time it takes to put the PJ in location. Otherwise, the PJ loses income because they can't accept assignments while traveling to and from the location.

The work day rate is considered any part of a day where images are produced. This means PJs have the camera out and are producing publishable images, whether published or not. This also means the PJ is using privately-owned equipment and hard-earned skills. This costs the client more.

If PJs' travel rates are too low, they must make up the difference with their work day rate. If the work day rate is too low, the PJ will be out of business soon. This benefits nobody.

Additional fees
All legitimate fees incurred while shooting are passed along to the client. These aren't expenses PJs would have if they weren't on assignment. No PJ pays a hotel, rental car or restaurant meal if they stay home. Keep the receipts and pass them along to the client.

"On stock" items are bought in bulk. Not too many years ago, we all had bricks of film and 100-sheet boxes of paper in our freezers. We purchased film and paper in bulk to keep our stock standardized (predictable results).

Now, we buy spindles of CDs/DVDs. Some folks even make prints for clients and need to calculate the cost per piece (I'll get back to this one day).

These are legitimate costs to the client. They would pay full price if the PJ didn't have these items on hand. The PJ has tested these products and found them up to standard. So, the client pays full price to get a superior product. Any difference goes toward the PJ's research and development phase. The only difference is there are no receipts to give to the client. So, they must accept the PJ's invoice as the receipt.

Due date
Most PJ work is Net 30. This means the invoice payment is due within 30 days of the date the invoice is submitted. Almost all clients pay on or before the due date (see below). The rest go into collections.

The importance of this paragraph is the establishment of interest charges for delinquent accounts. I've had at least one incident where the interest charges equated to much more than image use price. I eventually got the total due, but I would've rather gotten the fair amount on time.

The "terms and conditions" clause is the delivery memo.

Copyright
The copyright clause clearly states the PJ is the sole owner of the copyright. It also clearly states the client is buying a license to use an image. This eliminates misunderstandings.

Uses
The next paragraph lists the licensed uses. The additional statement is a formality. However, it does clarify for the uninformed that images used for self-promotion must appear in context.

Embargo
An embargo is a designated amount of time a publication has to use an image without it appearing in other publications. Spot news typically has no embargo while assignments do.

This is why it's CRITICAL for new PJs to never accept ex-post facto (after the fact) "assignments" for spot news. Publications are simply trying to secure an exclusive and limit the PJ's potential income.

The dates set are a normal embargo for an assignment. I've had clients want up to eight months, but those clients paid sufficiently for the time.

Another important embargo issue involves understanding the agreement is void if the client doesn't pay on time. It's a contract. They're contractually bound to pay by the due date. If payment isn't received, the embargo is void.

Either way, they must still pay use or kill fees, but the PJ is no longer obliged by contract to honor the embargo if the PJ has another client. This motivates most clients to pay on time.

Safe return
This confirmation form is old school. The safe return clause applies primarily to prints and chromes. Back then, it was important to get these safely returned because it was expensive to replace these images.

Now, images are mostly digital. It's far more important to ensure the images aren't "accidentally" reused without payment. I retain this clause to have leverage if something unusual happens down the road.

Credit
PJ's don't advertise in a traditional sense. Instead, our credit line ("photo by") is our advertising mechanism. While we don't particularly want our name used as a graphical device to fill space on a page, we want potential clients to see our name.

As such, our credit line has value. Publishing our images without this credit line costs us potential income, and we need to get it back. This clause sets our value of our investment and how important our advertising investment is to us.

Libel protection
Almost all publications change cutlines. Each publication has their own style and no publication wishes to be redundant (cutlines cover much of the same information for a series of images).

This clause is the PJ's protection against being involved in a libel suit because someone on the copy desk decided to be "cute" with the caption.

We accept full responsibility for our cutlines as provided. If they're modified, the publication accepts responsibility.

Several publications try to shovel libel responsibility onto PJs. It won't hold up in court, but they try.

Model releases
We've already covered model releases. If it's an assignment, get them. If it's spot news, only sell to editorial publications or get releases before selling images. Remember to charge an adequate fee for acquiring these releases and pass along model compensation fees.

This clause clearly states the PJ provides the model release rather than a client-provided release. The client's release typically only indemnifies the client and leaves the PJ hanging. In rare egregious circumstances, it tries to assign copyright to the client. Whereas the PJ's release protects both parties and places the copyright duly with the PJ.

Courtesy close
Finally, the courtesy closure gives assurance the PJ is a professional and will work diligently to provide the best images possible in a timely manner.

Enough for now,

Media boycotts Australian cricket

Mark M. Hancock / © The Beaumont Enterprise

Crickets fry in a skillet during Free Family Arts Day at the Art Museum of Southeast Texas in Beaumont on Saturday, Oct. 27, 2007.



Major media outlets including Associated Press (AP), Reuters, Agence France-Press (AFP) and many Australian newspapers are joining forces to boycott a cricket Test match between Australia and Sri Lanka. Cricket Australia (CA) is attempting to manage rights and demand payment for media access credentials.

For once, the organizations are doing this the right way. They won't cover any press conferences or any other organization-staged events. Appropriately, the history books won't include this event.

This is quite possibly the single worst attempt at a rights grab I've seen. Not only does this organization want to be paid for images shot by various media professionals, they want to claim intellectual property rights. I suppose they'd also like the managing editors to carry their babies, but they can't figure out how to legally word it yet.

If the CA holds a press conference in the woods ... who cares?

Cricket means as much to Americans as the Super Bowl means folks in Tajikistan, but both are important to some sports fans. With this said, it's basically meaningless to cover either event without use.

There won't be any less newspapers sold. There might be a few less clicks on news sites, but the entire news industry isn't going to collapse because we didn't cover a freaking cricket match.

If anything, those same shooters can put their talent and skill to work with fine local atheletes, who don't typically get enough page space. The latter could sell one additional paper and generate a few clicks as well.

Although it's not discussed often (if ever), at the heart of this mess is the core mission of this job. PJs and sports shooters get in this low-paying biz to have our work seen by others. If we must PAY to have our work stolen by a sports management company, it's not worth it.

PJs make images because we love the work itself. If others are greedy enough to want to steal our labor and limit where and when we can display our work, it's nothing I want to shoot. There's plenty of other stories that need my attention.

There is no acceptable access contract. We don't need managed sports or entertainment to make images. We make the images.

If self-serving, greedy people would stop trying to limit who sees the images we make, it would be a much better world.

Enough for now,

Get model releases

Each PJ should carry a few emergency model releases in the camera bag. At the very least, there should be one in the car. Consider it insurance.

The PJ world has changed faster than anyone could expect. Most changes were determined by "market conditions" and technology. These same market conditions and technologies may motivate people to do dumb things at just the wrong moment - without a PJ's knowledge - and may get an innocent PJ into trouble.

At these times, releases are an emergency parachute. When a PJ is racing toward the concrete, it's best to have a back-up plan.

Can I sue a photographer who doesn't have a model release?
The short answer is probably not. If the image is used in an editorial context and no laws were broken while acquiring or publishing the image, it's protected speech. A law must be broken.

If an image of an easily identifiable person is used commercially - particularly when used for an objectionable product that could hold the subject up for public ridicule - the subject could press a case. Check with a lawyer.

Main purpose of a model release
Although the main purpose of a model release is to protect the PJ and any later-designated publishers, it's mostly a file drawer item.

The only time the release becomes necessary is when the subject is upset. Most photo subjects never get upset (actually, most are happy to be in magazines or ads) and the contract never sees another day of sunlight.

Ethical PJs and ethical clients are the surest way to keep from needing to present a model release. However, our clients like to be protected too and may demand to see the signed release before paying an invoice.

The biggest benefit of a signed model release is the subjects' knowledge they signed a release. In other words, once the subject signs the release, they're aware it exists and aren't going to try to sue because they know they signed it.

What's a model release?
A model release is a signed contract to allow a photographer (or other entity) to use person's likeness without additional considerations from or for the subject of a photograph or recording (video or audio).

This release has no use other than proof of intention in a courtroom or as drawer filler in an office. They're semi-required for commercial photographers, suggested for editorial freelancers and rarely-used by staff PJs.

However, all three shooters need to have one available at all times.

PJs can pay large sums of cash to an attorney for a custom release and take the tax write-off. Or, they can use the sample model release posted on the PJ Glossary blog. The sample posted is simple, yet effective. There are more complex versions available elsewhere on the Web.

PJs are welcome to change the contact information on the sample to their needs and carry a copy (or 10) at all times. If nothing else, they make good emergency notepads for cutline information. :-)

Types of releases
There are various types of releases used in this biz. The one provided is commonly called a "pocket release." It's a single-page release. It's most often used for editorial assignments, but works fine for commercial gigs as well.

When working with stock companies and some wire services, the term "absolute release" may be used. This means the PJ acquired both model releases as well as property releases. It DOESN'T mean the PJ releases copyright to another party. That's called a "work-for-hire" contract (NEVER sign a work-for-hire contract unless it pays for the private jet you want).

I'll discuss property releases another day.

When to get a release
Before an assignment
In almost all circumstances requiring or desiring a release, get it before a single frame is shot. PJs can't waste time by working uncooperative subjects. Identify those who want to help, get the release and get to work.

Most editorial shoots are pre-arranged for a specific time. If a release is needed, call ahead and explain the shoot requires releases. Then, they aren't shocked when the PJ arrives with papers. If they don't want to play, it's better to know a few days or hours before the shoot than at the shoot on a tight deadline.

After an assignment
In an extremely rare instance, a company may want to purchase commercial reproduction rights to an editorial image. This situation requires an entire post, but the short answer is:
A) be certain the client understands the costs and will pay.
B) locate the subject.
C) offer a reasonable payment or print product(s) for releases.
D) NEVER transfer the image before the release is signed.
E) if the subject doesn't agree, the deal dies.
F) charge the commercial client for everything.

Open ended releases
In situations where a PJ is working a subject over a long period of time, it's possible to get releases anytime during the project. An open-ended release may be signed for an upcoming project, at the end of the project or at any point in between.

It's important to notate an open-ended status on the "description" line. Once the project is complete, notate the date range on the contract and have the subject initial the date range.

Parts of a model release
The model release provided is very simple. So this seems redundant to me, but let's break it down into understandable parts:

Header
The most important part is the contract header. It clearly states the paper is a "Model Release." This means any subject is a "model," whether paid or not, and they're "releasing" any claim of ownership to the images. Don't try to be cute or use a thesaurus on the header. This is the part the court wants to see.

Date
Next is the date. It's required on all legal forms.

PJ ID
The photographer identifies her/him-self as a photographer and lists enough contact information to distinguish this photographer from all others. Since the subject gets a copy, they can also use this information to order reprints. ;-}

Description
The next block describes the photographs. Typically, most PJs keep this as generic as possible to maximize an image's usefulness (intended or otherwise). However, if the images are specifically for commercial applications, say so. Editorial uses are a freebie, commercial uses aren't.

Furthermore, if it's for something that could lead to embarrassment of the subject it MUST be spelled out.

For example, if a person agreed to model in a commercial advertisement for a hemorrhoid of other disease treatment, GET IT IN WRITING. These situations are the most likely to show up in court. Likewise, these images require additional payment or other considerations.

In short, make it absolutely clear what the model is doing and where it's going if it's something other than a "happy person image" on a beach.

Legalese
The legal speak on most contracts is confusing. This is deliberate. Some PJs prefer this approach. I prefer the bullet-proof approach. No jury can decide a subject didn't understand the sample model release. Here's the blow-by-blow:

"For consideration received," is the most vague statement on the contract. This can mean anything from payment received on a commercial shoot to the option to refuse on an editorial shoot. Either way, it means the subject had the option to back out - and didn't.

For commercial shoots, it's wise to offer a minimum payment of a dollar, an "in-kind" print exchange or a combination of both. Then, the PJ is completely covered if something goes wrong.

"I give (PJ's name) permission to reproduce the photograph(s), audio and/or video recording(s) described," acknowledges a named PJ acquired permission to reproduce with the subject's full knowledge. This version is all-inclusive for multi-media shooters.

Some PJs prefer to have the subject's name after the word "I" and may add heirs, consorts, small marsupials with large glistening eyes, etc. for extra protection, but it's somewhat redundant. The release is the entire contract.

"and I agree that (PJ's name), and all licensees and assignees," designates all possible secondary outlets. The most important part of this line is the PJ's name.

Often, companies want PJs to use their specific release. If a company demands their release, don't accept the gig - especially with stock agencies. Their release only gives THEM the right to reproduce the image. By using their release, it's a back-door exclusionary contract for the company because it's useless to anyone other than this company - including the PJ.

By primarily releasing the PJ, all other entities are covered. This is the only bulletproof release.

Some PJs add extra lines to include all the PJ's heirs, hairs and hares as well, but it's unnecessary considering anyone can be designated as a licensee or assignee.

"are entitled to use the photograph(s), audio and/or video recording(s) described above in any manner or form whatsoever," this is the "catch-all" phrase to save our rumps. Most editorial publications have a wall between editorial and advertising, but some less-educated personnel at an upstart e-zine might decide to do something stupid publicly with an image they "found" in the system.

As much as PJs would like a subject to slap down an idiot that misuses our images, we must protect ourselves first. This line is our last line of protection. Our first defensive line is to only work with reputable clients (the only way for me).

"either wholly or in part," this means the image(s) can be cropped or (hopefully not) used as part of a digitally mutilated manipulated image. Since we don't know what's actually going to happen to an image once it leaves our hands, this line is also critical.

"in any medium," allows all uses in print, on the Web, with plasma beams transmitted to neural microchips.

"and in conjunction with any wording or other photographs or drawings," this helps protects PJs from libel or defamation suits based on the accompanying text and/or other images or ads on the page. If the libel was the PJ's fault, it still doesn't help.

Some editorial subjects have decided to sue in the past because they didn't like an advertisement appearing on the same page as their portrait. Keep this line to protect against these situations.

"worldwide." allows both domestic and foreign markets as well as Internet uses (because we don't know in which country it's eventually viewed).

"I understand that I do not own the copyright of the photograph(s), audio and/or video recording(s)." this establishes the PJ's (soft) copyright ownership without a conflicting claim. A subject never owns the copyright unless there's a really strange secondary contract. This line points out the obvious.

"I understand that all negatives, positives and digital images together with the prints and/or recordings shall constitute your property, solely and completely." this is the absolute ownership statement. It removes the "for hire" argument. The release is in the PJ's name and doesn't belong to anyone other than the PJ, who can solely determine and designate assignees.

"I am over the age of majority. _____ (initial)" this notates legal status of a person 18 years or older. For minors (those under 18 years), their parent or guardian must sign the contract on their behalf. When this happens, have them write the minor's name and age to the side of their own printed name.

"SIGNER'S NAME (printed):" this is the legible printed name of the person who is signed the contract.

"SIGNATURE:" this is where the signer makes their legal mark.

"ADDRESS:" this identifies the person by an additional fact to distinguish one "Bob Jones" from others. It can be a business address as long as it's noted as such. Even if the person moves, the address is still part of the person's history. The attorney would ask, "did you ever live/work at..." and the gavel goes down. Dismissed.

"PHONE:" again, this is an identifier. It's also a back-up if additional cutline information is needed or additional rights need to be obtained such as this model has "the look" for a med company's hemorrhoid product.

"WITNESS:" find someone (anyone) to sign here in the sight of the model. The PJ can sign, but it could negate the contract for some judges or juries.

"Thank you for your cooperation!" this is a worthwhile courtesy.

Why do we need a model release?
Commercial
The easiest answer is for commercial uses. Any commercial image (ad) needs to have a model release. End of story. We DON'T know how and have NO control over the words and images associated with the image(s) we make for an ad. Furthermore, we don't know how the image could be used.

PJs never want to be associated with a commercial image without a release. It could turn out to be a career ender and the conclusion to one's home ownership.

Editorial
For pure editorial use, no model release is needed. Unfortunately, there are fewer "pure" editorial publications. Most daily, metro newspapers are considered "pure editorial." However, everything else becomes a little fuzzy - particularly online.

An editorial image can be used to advertise the publication without a problem. It can also be used to promote a story within a publication (referring image). However, the words associated with a publication ad or referral are completely out of a PJ's hands.

Again, this isn't a big deal with most major broadsheet newspapers, but it can become the pivotal factor with a magazine, a tabloid-format weekly newspaper or a Web site.

When do we use a model release?
The rule of thumb is, "When in doubt, whip it out."

It's never wrong to have signed model releases. It's always safe to have signed model releases. Having said this, there are wrong times for newspaper PJs to ask for them.

Newspapers
Again, a major metro daily newspaper is safe without releases. Yes, there's the online factor. However, most papers also separate online content by editorial and advertising. If they don't, be concerned.

Magazines
Magazines and online-only publications are trickier. Unless a PJ is working for a "news magazine," it's best to have the releases for any recognizable people and/or domestic animals (a property release is appropriate for animals, but a model release works).

Again, this goes back to the PJ not knowing exactly how the image is used or what ads appear on a page. Magazines have a much looser editorial standard than newspapers. For instance, they regularly "flop" (invert from left to right) images. This might not seem like a big deal to casual readers, but this makes a man's jacket into a "ladies' cut" and there's been a successful lawsuit won over this issue.

If it's for a magazine or online-only publication, get a release. Or, find another subject.

Commercial uses
Consider releases mandatory for commercial images. They're still only insurance and often there's no fallout if a shooter forgets, but it isn't worth taking a chance.

Most of the time, commercial models are paid. They know the release is part of the deal. No release equals no payment for the model.

Some newspapers have PJs shoot occasional ads. Often these are simple portraits of a business owner in their shop with their products. Even under these circumstances, the PJ should get a release. There simply is no knowing what will happen in the future.

For instance, General Beelzebub Q.T. Jones poses for a hometown news ad at his lizard-on-a-stick BBQ stand (this should eliminate any similarities to anyone). A PJ makes the image, but doesn't get a release. The good general is happy and continues using the same shot for many years.

Some years later, a mega-corp buys the franchise rights for the company. A year later, he decides he doesn't like what the mega-corp did to his fine franchise. Consequently, he demands they stop using his likeness.

Well, they don't bother to tell the ad reps about his demand and suddenly a retired PJ is getting a summons and/or subpoena. Not fun - especially since the PJ now lives on a fixed income on a Pacific Island.

OK, I know what the PJ would actually do in this situation, but s/he might have great grandchildren in the original hometown and would want to visit occasionally. The point is a model release is important - even if the subject is the person who's buying the ad.

Enough for now,

Avoid anything Nygard

I was going to post some fluffy images from fashion designer Peter Nygard's visit to Beaumont during his nationwide tour of Dillard's stores. Then, I found this CRAZY rights-grabbing cattle call from "senior fashion photographer" John Bartelings (via Model Mayhem). Read it for yourself if you want to see what's absolutely unacceptable.

They wanted student photographers to follow the designer around and pop flashes to add some razzle dazzle for the TV and video shooters. The whole tour is a staged event; why wouldn't they stage this as well?

Here's the crux of it:

"(HOWEVER: NO PUBLICATION RIGHTS-SEE WAIVER FORM) they will provide their own equipment and own film/Memory Cards - NOTE: CF cards will - after download - be returned to the photographer they will follow instructions from our Staff Photographers & Nygård Officers ... they will provide their presence FREE of charge they have to sign the attached Waiver Form and return it when picking up the Media Pass..."

I'm surprised the student shooters didn't need to provide caviar and goblets of blood samples.

This doesn't apply to the media. It's actually for the media (TV). If media folks in other cities could avoid covering the event and feeding this horrible abuse of photo students (and future fashion copy-cats), please do so.

Enough for now,
 

Sign the Orphan Works petition

Earlier this year, I asked folks to take action about the proposed "Orphan Works" (copyright stealing) concept. For the folks who who care about your intellectual property rights and haven't voiced your concern yet to your representatives in D.C., LightStalkers offers a relatively painless Pro-Copyright Petition. Just send them an e-mail with your name, profession, location and citizenship, and they'll add you to the petition list.

This important issue must be resolved. I'd imagine there are very deep pockets behind the push to take our property rights, but possibly the latest political turn might make some folks think before they try to steal more of our rights.

Thanks to Frank Johnson at shootfilm.net for the link.

Enough for now,

Don't sign access contracts

In this biz, we sign and negotiate many contracts. Common to the profession are model and property releases, vender agreements, delivery memos, image licenses, "hold harmless" waivers (personal safety waivers) and more. Most of these are either required to protect our rights, keep us from getting sued or keep someone else from getting sued.

We either write or read them carefully and redact (scratch through) phrases we know are unfair or plain wrong. Anything without a date or time limit is typically considered "wrong." I won't hold a company harmless forever. However, I'll hold them harmless for one day while I'm flying with a parachute team.

Typically, we encounter various contracts during our freelance work. Staffers rarely encounter contracts after an initial employment except on assignments dealing with airplanes and other dangerous situations. This is primarily because we work for a corporation. Any contracts with the outside world are handled through the corporation attorneys. Since we're not the legal representative of the corporation, we can't sign a binding contract on the company's behalf.

Entertainment access contracts
In recent years, national, touring entertainment events are trying to make PJs sign contracts to gain access. They can demand signatures for access, but PJs shouldn't sign them. If it eventually means we're walking away, then it's the performer's fault - not ours.

It's really embarrassing and disappointing to walk away from a concert assignment. It's only happened three times in my entire career. It leaves me with a creepy, violated feeling inside. However, I'd rather walk than be completely violated by signing the contract.

Early in my career, I signed an ambush contract at a venue. I still hold resentment against the performer and its promoters. I won't purchase any of the performer's products, nor mention the performer's name in print or online (it was previously one of my favorite performers).

PJs are at the venue for the "First two songs, no flash" to document a performer's visit. The bigger and more local the performer, the more important it is to document the performance. These images are used immediately after the performance, but they become part of a publication's archive and are used again for future stories.

Most performers return to a venue or city if their last appearance was successful. Archive images are used for future preview stories. Furthermore, entertainers are news. Imagine not being able to run images of a performer who gets married, becomes sick, gets in an accident, gets arrested or dies. After all, the performers will probably die before the newspaper does.

Why not sign?
This is a common argument. Let's look at the primary reasons. There are more reasons, but these should suffice.

1) First and foremost, a staff PJ isn't authorized to enter an agreement for the company. PJs can enter personal agreements to waive safety (common while covering parachuting, rock climbing and other dangerous "extreme sports"). However, the PJ is not the company and the PJ can't know what happens to the image after it's placed into the system. Contract stipulations could be violated the second the image enters the system and the PJ has no control over it.

Since most staff PJs don't actually own the images (the company does), the images stay at the company if the PJ moves to another paper or magazine. After the PJ is gone, anyone in the organization could violate this contract and leave the PJ and/or the company on the hook for contractual damages.

2) Although most PJs can work their way through a contract and find the loopholes, there's always the chance for a trick phrase to catch the PJ and put her/him in a pinch. The problem isn't with the general contract wording, it's with the alternative meanings (i.e. the language lawyers prefer).

For example, "Bob owns all rights to his name and likeness." It sounds reasonable - particularly when couched with other innocuous statements such as "grass is green." However, it means whoever signs this agreement also agrees that Bob owns the images made of him during the performance. Furthermore, this is an ex post facto agreement. Since the statement says "all," it means any images taken before or after the contract date by any person in the organization.

Honestly, it's unlikely the performer will ever enforce the terms of this contract. However, the fact that they could do it is enough to reject the contract and walk. It leaves the PJ and the company open for a lawsuit and has a chilling effect.

For example, let's say a circus has a signed contract from five years ago. During the show, a clown violently kills a stilt walker, two security guards and a few patrons then flees. Now, the city has an armed, killer clown on the loose and a PJ has spotlighted images of it.

FYI:   they'll stop the press for this story with photos.

The circus promoters immediately want to squash this news as well as any related images and stories. With a carefully-worded, signed contract, they can threaten the newspaper and keep the story of their killer clown out of the news. This isn't a situation any journalist, PJ, editor or publisher wants.

3) It's unfair treatment. No reporter would agree to a similar contract. Somehow, entertainment folks have decided to treat visual reporters differently than text reporters. The text reporters are free to write whatever they choose, however they choose.

4) It's against the spirit of the free press (First Amendment). If we're not invited, fine. If we're invited, let us do our job. We're there to show the performer to our readers and make some readers happy for a moment.

Resolve this problem before it happens
First, the reporter assigned to cover the entertainment event should want to contact the tour company for an advance interview of the performers. During this time, the reporter can find out if any such contract will be presented.

If so, the reporter should have the promoters fax the contract to the company attorney. Since tour dates are scheduled months in advance, there's plenty of time to work out the logistics. The attorney can go through the contract and see if the company is willing to take on the legal liability involved while giving this performer free publicity (in editorial space, which can't be purchased at any price).

If so, the lawyer settles the agreement and all is cool. The PJ gets the shooting rules in the assignment and all is settled. No problem for the PJ.

If the company attorney and the promoter lock horns and either backs away, the PJ simply doesn't get the assignment. No problem.

Either way, everything should be settled before the PJ gets the assignment or arrives at the venue.

Should the venue not be aware of this pre-established agreement, the contact name and number on the assignment should be for the tour manager and any problems can be settled immediately.

Keep perspective and professionalism
Should an ambush contract ever be presented to a working PJ, try to stay calm. Often, promoters back away from the contract if they understand the PJs will walk. Explain the situation calmly to the promoter and give them a chance to resolve the problem.

If the venue promoter says it's out of their control and the tour manager is somehow unavailable, call the desk. It's best to have the desk make the final decision. Often, it's company policy to walk away from these situations. However, the desk will want to make the final call.

PJs actually have the upper hand in these situations. It's unlikely a newspaper will lose a single subscriber if a concert isn't covered. However, it's very likely the performer loses potential album sales if the concert isn't covered by a major newspaper. If several newspapers band together, performers (or their lawyers) are likely to ditch the silly contracts. Then we (PJs and performers) can all happily do our jobs.

Make lemonade
If the headliner demands the contract for access, see if the opening act (typically new in the business) is included in the contract. If not, shoot the opening act. They probably welcome any publicity.

Another option is to shoot fans in the lobby or outside the venue.

At least the PJ has something to fill a hole in the paper. Additionally, today's opening band may be tomorrow's headlining band.

Enough for now,
 

"Orphan Works" action needed

Imagine risking your life to make a photograph. You go through the steps to get a proper, registered copyright. Next, imagine the photograph later appears in a national advertising campaign without your knowledge, approval or payment. Then imagine not having any legal recourse to get proper payment, damages or even legal fees.

This is the crux of a proposed "Orphan Works" amendment to the U.S. Copyright Law.

The ASMP and other organizations around the world are urging photographers and those who care about photography's future to write letters to Congress to stop this action. If it passes, it'll effectively eliminate all protections photographers currently have for images published inside the U.S.

If successful, it's possible this gutting of copyright protection could take root in other countries worldwide.

ASMP has produced a detailed call to action, sample letter and congressional fax contact information. Although faxes are harder to ignore than e-mails, you can also e-mail your congressional representatives.

If we do nothing else this decade, let's stop this one action. I understand this requires time and effort. But if this amendment passes, it'll require much more time and effort later (looking for a new profession).

Folks who are new to this industry or still in college have the most at stake. If this passes, advertisers and editorial markets would have no motivation to pay for images. Once an image gets published, it could become free.

This is also a great time to start blasting large national publications that run our images without credit -- although our AP instructions specifically state "mandatory credit." Under the proposed amendment, these would be "Orphan Works" and could be used for free without remedy. This alone would be enough to keep many of us from submitting any images to AP.

Consider the chilling effect this action would have on visual information. If only images published with credit lines have any protection, and some media outlets choose to change credit lines to "AP photo" (which they are not), then PJs and their media outlets would only lose money by submitting images to AP. Consequently, most won't.

Please act on this legislation before it's too late. Please also bring this issue to the attention of your directors of photography, managing editors, publishers and company attorneys.

Enough for now,

UPDATE: Sign the Pro-Copyright Petition.
 

Reasons for distrust

If anyone wonders why PJs are so protective of our images and actual digital files, read David Leeson's Dec. 5, 2005 post about image theft. The post also points out the importance of ingesting images (rather than simply copying) to imbed copyright information into the image files. People around the world are claiming ownership of his Pulitzer Prize-winning images from Iraq.

His post explains why delivery memos and contracts are now required forms in this biz.

Enough for now,

Stop using AOL

Photographers should stop using all AOL services immediately. Time Warner Inc., formerly AOL Time Warner Inc., has changed its terms of service to automatically have free, unlimited perpetual use of any information posted to "public areas" of AOL Instant Messenger network.

Luckily they have a Procedure for Making Claims of Copyright Infringement, which places the onus on the PJ. Instead, just send them a certified mail invoice at punitive damages rate for one month's use. Make sure to compound it monthly until they get around to it.

If they balk, and your copyright is registered, you and a lawyer of your choosing can own a piece of this huge publishing company.

See some of the key terms on Break'n out the Big Glass.

Enough for now,
 

Know your rights

Most PJs take media law courses. However, many non-media photographers are concerned about their right to make photographs. This is particularly of concern in post-9/11 America, where some would like to use fear to exert illegitimate power over others.

If you aren't certain of your rights as a photographer or citizen, read this one-page report on photographers' “Rights and Remedies When Stopped or Confronted for Photography” by Bert P. Krages II, an Oregon-based lawyer. He is also the author of the book
“Legal Handbook for Photographers: The Rights and Liabilities of Making Images.”

It puts most concerns to rest.

Enough for now,
 

Editorial is editorial only

For those just starting in the fields of photography (art, editorial, commercial), get accustomed to acquiring model and property releases. This lets your images cast the longest shadow and possibly save your butt in the future.

I'm working on an entry about the levels of legal problems by field of photography, but don't want to give you two heavy blogs in a row. For now, consider the following story and how it could have been avoided.

Newsweek photographer and White House News Photographers' Association Lifetime Achievement Award-winner Wallace McNamee of Hilton Head, S.C., took a photo. The photo was later licensed to Corbis Corp. of Olympia, Wash., an online digital image company. They licensed it to a greeting card company.

This is a normal use of images like a butterfly on a flower. However, this time it was a woman smoking and drinking before a wedding – more than 20 years ago. So, she's suing.

Obviously, something went wrong at the super-conglomerate photo service. Editorial images are for editorial use. Commercial images are for commercial use. The line between the two should not be blurred - particularly when there's no model release.

Enough for now,
 

When can a newspaper be closed?

Although I'll not shed a tear if I hear something unfortunate happens to anti-American Shiite cleric Moqtada al-Sadr, someone must look at the actual facts surrounding the newspaper closure and the immediate escalation of violence in Iraq. Judging from the facts available, the CPA's and therefore the U.S. government’s actions appear misguided at best.

What al-Sadr advocated, said and did after the newspaper closure and arrest of his deputy definitely falls into the unlawful category. No doubt. No problem.

However, there are some problems. There are also some disturbing parallels. This newspaper closure doesn’t look fair or as legal as I had anticipated.

I plan to share some media law relating to the situation and cover some legalities of concern to journalists. I'll primarily reference a 10-year-old text. I wouldn’t expect a landmark overturning of the final few cases, but it could have happened (I never expected the USA PATRIOT Act to pass or Congress to hand the keys of the military to the president – these are unusual times). If there is a specific case which makes the following moot, please send me a note so I can be accurate and up to date.

I've seen a lot of grumbling on both sides of the closure of al-Hawza, the radical, anti-American Shiite weekly Iraqi newspaper linked to al-Sadr.

When I started writing this entry, I expected to briefly explain some landmark Supreme Court cases about how any U.S. newspaper could be legally closed. I (mis)understood al-Hawza had published one particular story calling for the death of so-and-so or some other act of violence - as would warrant a newspaper closure (it's unlawful to call for violence).

I hunted around the Web to find a translation of the actual story which lead to the closure of al-Hawza. I even have a literal in-house translator. Instead, I find the paper was closed because it reported falsely, didn't have correct facts, lied, whatever.

Hopefully everyone knows the majority of the Middle Eastern media make American supermarket tabloid publications appear legitimate. Additionally, this particular publication is widely portrayed as exceedingly intolerant.

However, I'm concerned when international news agencies accept the CPA explanation and didn't ask for the specific story which caused the closure of a newspaper.

Most publications state something similar to a UPI story, which states, “The CPA said the newspaper was closed for 60 days because it advocated violence against the coalition.”

This is not the primary source. The UPI story didn't give a translation of the original text or explain the nature of the original text. It truthfully reports the CPA "said" something, but it didn't check the underlying facts. This may be precisely the problem that caused the closure of al-Hawza. They quoted someone without independently investigating the facts.

According to an Associated Press story, "the chief U.S. administrator in Iraq, L. Paul Bremer, ordered Al-Hawza closed for two months on Sunday because its articles ‘form a serious threat of violence’ against coalition forces and Iraqi citizens working with them."

He used CPA order No. 14 as his legal basis. He wrote the order, therefore he should darn well know the order's terms. It clearly states "incite" violence or disorderly conduct. This is not the U.S. standard set to halt a press.

In the U.S., there must be a specific story making a specific and actionable call for violence against the government – not an implied threat to possibly make this call. By definition, Bremer didn't even adhere to the order he wrote.

Common Dreams News Center, a less-than-neutral-source, reports “the incident that precipitated this whole round of violence was the closing of his newspaper, al-Hawza, a blatantly undemocratic act. In fact, the paper was not closed for directly advocating violence, but simply for reporting one eyewitness claim that a supposed car bombing that killed numerous volunteers for the New Iraqi defense forces was actually done by plane (and therefore by the United States).”

U.S. Standard to close a newspaper
In short, a newspaper – any newspaper in the United States – can be closed by the government. However, the government can ONLY order a closure once the paper has already called for the violent overthrow of the government.

Furthermore, the government isn't allowed to exercise "prior restraint" (censorship). Rather, it must pursue "subsequent punishment" for dissemination of an unlawful form of communication. Meaning, the government can't close or censor a publication because it thinks it might call for some violent action. The publication must have already called for a violent action against the United States government.

This is a tough standard.

Luckily for the CPA administrators, they're not acting in America. Otherwise, they would need to deal with the First Amendment to the United States Constitution.

Legal precedents
The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

This Amendment allows newspapers to exist relatively unfettered by the government. If Congress can't make laws prohibiting someone from running a press, nobody else can impose rules, laws or ordinances against this same press.

Other media – specifically radio and television – are transmitted on public airwaves and can be regulated by the Federal Communications Commission (FCC). So, I'll only address press-based media (newspapers, magazines, journals, handbills, and {possibly} Web-based publications) for this entry.

This protection allows for a free exchange of ideas in the public arena. Since the written word – and photographs by association – require the active participation of the reader, the same reader has the right not to read anything they wish not to read. Again, other media are different because of their passive nature. Right Miss Jackson?

Although this is a critical entitlement in America, it's balanced against other protected rights. For example, the right to live is more important than freedom of religion, speech or press. This explains why newspapers are prohibited from publishing certain names in some specific instances (i.e. court "gag orders").

However, there are some exceptions. Evince the 1919 Supreme Court decision in Schenck v. U.S. (249 U.S. 47). The case resulted from the Espionage Act of 1917, which was expanded in 1918 by the Sedition Act. Congress passed the act shortly after the start of World War I. It was designed to stop anti-war activists.

According to "Major Principles of Media Law" (1993 edition), anti-war activists (specifically socialists) distributed 15,000 leaflets for military recruits and draftees. The textbook states, "They urged the draftees not to serve and called the war a cold-blooded venture for the profit of big business."

Hmmmm….

Anyway, the socialists' First Amendment argument for the legality of the leaflets was rejected. Justice Oliver Wendell Holmes Jr. stated:

• "We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." (emphasis added)

Holmes also made the analogy: "free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

If the legal precedents ended here, then the CPA would be justified in its actions. However it doesn't, and they aren't.

Holmes eased up his minority views in later sedition cases, but most cases were upheld during the war.

The 1940 Alien Registration Act, known as the Smith Act, was attached to an unrelated bill and passed under the radar of most free speech advocates for several months. This new law not only prohibited advocating the forceful overthrow of the government (with little or no proof of ability to do so), but it also made it a crime to participate in or advocate any such group (i.e. communists). Furthermore, this new law applied during peacetime as well as during war. Meanwhile, politicians invented the term "Cold War" for additional rump coverage.

This law was continually upheld at the Supreme Court and led to McCarthyism through the 1950s. In 1957 a newer Supreme Court member, Chief Justice Earl Warren, helped curb the Red Scare and restore freedom of speech.

In Yates v. U.S. (354 U.S. 298), the court reversed convictions by focusing on "the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of principles divorced from action." Consequently, proof was required to convict.

Then came the Vietnam War and millions of vocal protesters. Most wanted to change the government and were allowed to voice their opinions because the way was cleared by the Supreme Court.

Believe it or not, the freaking Ku Klux Klan then expanded free speech further in Brandenburg v. Ohio (395 U.S. 444). The court ruled the First Amendment should not permit sanctions for political speech unless it threatens to provoke imminent lawless action.

This decision created the need for later "hate speech" laws.

Recap
Let's recap: The socialists, the communists and even the KKK secured the speech freedoms extended to all Americans. These aren't loved groups. American democracy is hard to live with. It means we must protect the rights of extremely dislikable people to ensure our own rights. During this unusual time, American resolve is being tested. Let us not fail.

Enough for now,