Sunday, January 28, 2007

Why Register?

I was having dinner with a friend who's been representing a photographer who sued Court TV for using a photograph of his after he refused to license the photograph to him. The case settled after my friend beat out the summary judgement motion of the other side. The case took a lot out of him, and since it was a settlement, he couldn't talk about it. I hope he saw compensation for the work he did, because he took it on a contingency and I didn't think the facts were going to let him get statutory damages or attorneys fees.

From the papers I read as it was going on, one of the arguments the other side made was that it was fair use to use the photograph because it was a newsworthy event. In fact, the photo was a wedding picture and the wife was convicted of murdering (or having had murdered) her husband. (It's been a while since I read over the papers.) I worry every time I hear the argument that some news organization thinks it should be able to use photographs without compensating the photographer because of "news." I know there are judges out there who believe that or who simply don't grasp the importance of licensing photographs to a photographer's business health. They just don't get it.

Back when the 1909 Copyright Act was working its way through Congress, the big newspaper men of the day tried to get a news exception for the use of photographs, meaning any photograph they deemed "newsworthy" could be published without permissiosn of or compensation to a non-employee photographer. In those long ago days, a small group of photographers managed to convince Congress to reject this move. I was amazed when I discovered this when reading through the legislative history of the 1909 Act, because photographers were far less involved with shaping the Copyright Act of 1976. Fortunately, ASMP and other organizations have been far more active in Washington on behalf of photographers during the past 20 years than they were during the middle of the 20th century.

Back to the question of "why register?" Because excellent lawyers like my friend can't afford to take on contingency cases without the likelihood of recovering their fees and the best insurance that will happen is when a photographer has a registration which was made before an infringement takes place. That registration will most likely avoid litigation of any kind, or at least stop it at the summary judgement stage--early in the proceedings.

Today at the workshop, Seth Resnick addressed the registration matter as part of the work-flow process. Every time he processes his digital files, he's automatically making the low resolution jpegs which will be sent off to the Copyright Office on a cd. I expect that when he covers this a little more tomorrow, he'll let the class know how often he sends material to Washington. I spent some time advising a couple of photographers to do it on a 60 day cycle, to make sure the registrations take place during that 90 day window after first publication. I advise they be done within 60 days of creation. It's cheap and easy to register unpublished images, but so few images are really unpublished anymore, with photographers uploading to web galleries. Make no mistake--that's a publication..

Saturday, January 27, 2007


DAM means digital asset management. I'm speding four days in a workshop taught by Seth Resnick and Jamie Spritzer of D-65 working our way through digital shooting and work flow. It should really prepare me for teaching the first digital Photo 10 class I'll be doing this spring. I've already realized that the six instructors made a couple of bad decisions about standardizing the beginning class and I'm going to have to talk to our department chair before classes start on February 5.

I've got a lot of work to do to set up my own work-flow, but that was the reason for taking the workshop. I'm also getting used to working with the new MacBookPro. I need to find out how to increase the size of my display text. It's just too small for me to read comfortably.

Friday, January 19, 2007


Art Buchwald died yesterday. He was one of those individuals whose paths crossed mine because of my camera. I have a memory of one of his columns which must have appeared in the 1960s about the U.S. Revolutionary War. I don't remember the particulars, but I do remember it stuck with me for a long time and when I saw it reprinted I knew I had read it before. I very much enjoyed his wry take on life inside the Beltway.

Mr. Buchwald lived very near Ethel Kennedy, which is why I got a chance to photograph him wearing a top hat and tails as he emceed Mrs. Kennedy's charity pet show at Hickory Hill one year. The Washington Post sent me out to photograph the event (which was annual for some time) and I also photographed Kathleen Kennedy's oldest daughter decked out as Little Bo Peep and British dog trainer Barbara Woodhouse (I think that was her name) who was among the celebrities in attendance. Lots of Kennedy children and cousins were there (including ones who are no longer with us.) I think I was about 6 months pregnant at the time, and hiking around Hickory Hill with a heavy camera bag was a bit tiring.

Mr. Buchwald was every bit as funny in person as he was on paper. I'm glad he outlived his doctors' prognosis and I would have enjoyed being a fly on the wall of the "salon" his hospice room became. The world is a poorer place because of his passing.

Catch-up is a Bitch

I spent the last two days attending Peter Krogh's excellent workshop on Digital Asset Management (DAM, as he likes to put it.) Wow. Do I feel like I've been under a rock for the last 15 years. I left the program yesterday and dragged myself home, feeling like I went through a wringer. Today, I've got all kinds of great ideas about how I'm going to implement this in my digital workflow and, eventually, will be able to manage my most valuable photographic files. One of the best points Peter made was start from this point forward and work on the old stuff later on. That is an emancipating suggestion.

Wednesday night, Peter did a 4-hour lecture over-view of his system (you can get The DAM Book on Amazon) and Thursday was 8 hours of hands-on work with Adobe Bridge, DNG Converter, a little PhotoShop and LightRoom, and an intense introduction to iView Media Pro 3. The last program is amazingly powerful and I wish I had enough time left in my life to get my 30+ years of images processed and indexed, but the amount of time that it would take to digitize 30 years of film means it simply will not ever happen.

I made the leap to buy an Apple MacBook Pro just before going to the program. I am very glad I did (even though I won't get the new computer until at least tomorrow) because some of programs work better on Mac than on PC. As I looked around the room, I was one of about 5 photographers working on a PC laptop. We were the ones who couldn't do some of the steps because they weren't supported in our software. This morning, I was busy buying CS2 and iView Pro for the new laptop. Since I teach at a community college, I was able to take advantage of deep discounts offered to educators for the software and slighter ones for the computer.

I'm going to the four day D-65 Workshop next week where I will be using the new computer and software along with the digital camera. I can't imagine how tired I'll be after that!

iView Media Pro can also be used to track MP3s, movies, documents, tiffs, jpgs and other files as well as DNGs. I'm willing to bet I will find really good ways to use it for my legal files and documents as well as for my photographs. It would be a good way to keep all files related to one client or one case together (although I can also do that in a program I own called TimeMatters which is not quite so robust.)

Later, I'll be off to Fry Electronics looking for this weekend's sales on storage devices.

Friday, January 12, 2007


My husband believes that it is easier to get forgiveness than permission, and I've learned to deal with him that way. But I keep telling him that this is not the way things work in copyright or trademark law.

Witness the flack that's flying because Apple announced the "iPhone" before finalizing any negotiations it may have been in with, I think, Cisco before Steve Jobs made the announcement earlier this week.

I am far from an expert in trademark law. My friend Karen is and we frequently disagree about which is the more difficult IP law to understand. She says trademark is a piece of cake, I say copyright couldn't be simpler but trademark is convoluted. My proof is that anyone can file a copyright registration and get it right but even professionals are guaranteed to get at least one "Office Action" for any trademark filing.

In any case, I had noticed that Apple was being very coy about calling their possible announcement an "iPhone" before the announcement, even though it would appear that the company does have a strong mark in the "i-Whatever" area. I was certainly not aware that any other company had such a mark, but the Internet does make searching the USPTO's files very easy. I heard my acquaintance Paul Supnick on the radio yesterday saying he thinks that what will happen is that Apple will buy or license the "iPhone" mark at a higher price than they originally expected to pay. Probably true and probably worth it for all parties to the deal.

So many news reports mix up copyright, patent, and trademark rights. Simply put, copyright is about authorship, patent is about invention, and trademark is about the source of goods or services. Sometimes things are protected by two of these concepts, and it is possible that some things might have protection under all three. Patent protects for the shortest period and trademark can theoretically protect for the longest since it's good as long as something is used in commerce and the periodic fees are made to the USPTO. Copyrights and patents are mentioned in the U.S. Constitution, trademarks are not.

You can't copyright a title, but you can get a trademark on a series of titles (Star Wars is a series) while the books or films are individually protected by copyright. Short phrases can't be registered for copyright, but a single photograph or drawing can be. I think an individual haiku can be registered for copyright, even if it has fewer than the 15 words that Ralph Oman, former Register of Copyrights, said was the rule of thumb minimum for registering writings.

If you need information or forms for registering a copyright, go to Even a copy of the law is there.

Isn't that easy?

Tuesday, January 9, 2007

Copyright Genius

I've just learned that Bill Patry, whom I first met back in the days when I worked with Chuck Ossola on ASMP's lobbying efforts in DC, has a blog. I've added a link ( you should definitely read him. Bill is an absolutely brilliant copyright lawyer whose treatise is always close by in my personal law library.

I must confess to being a little concerned that he's now a senior counsel for Google. Despite its "don't be evil motto" and its crowning as the best place to work (yes, I too could get into the perks), I worry that Google is making its money by ripping off individual creators who don't get the benefit of those lovely benefits Keith Olbermann reported on last night.

Friday, January 5, 2007

A Bright New Year--Maybe

I, for one, am enjoying the fantasy of some transparency in government now that Congress has changed hands.

What will be interesting to see is how things move along with the "orphaned works" provision bill. Congressman Howard Berman will chair the responsible committee in the House. In the past, no changes happened in copyright law without all the interested parties agreeing. More recently, this has not been the case and careful balances have been upended.

I first met Congressman Berman around 20 years ago, when I lived and worked in D.C. I met with him and and some of his aids when I was on the ASMP Board and helped to set up the Copyright Justice Coalition. I've had the opportunity to meet with him a number of times over the years and I've always found him responsive to the needs of the creative community. He was a guest speaker for me when I was the chair of the entertainment section of the Beverly Hills Bar Association and I called on his office for advice when I handled Harlan Ellison's lawsuit against AOL. I hope that he will see the folly in the proposed legislation (assuming it is to be reintroduced this session of Congress when there are so many other pressing matters.)

As I understand it, the falacy on which this legislation rests is that it is impossible to find the authors or copyright holders of many works. Even if this is true in a few cases, the Internet has really made it far easier to locate artists and writers. I cannot tell you the number of times I've been able to find contact

But greed makes corporations and other individuals want to be able to use the work of creators without the bother and expense of licensing, hence the smoke screen that there are huge numbers of ophaned works--as opposed to works legitimately in the public domain--in existence. Corporations sure don't want any of their properties to fall into the public domain--Disney spent a fortune making sure that Micky Mouse is still all theirs by pushing a law that prevented the mouse from hitting the PD four years ago. Such corporations have spent years (probably more than the almost 30 years I've been watching) telling Congress the balance of copyright is between the rights of creators and the rights of publishers (using that term in a very broad sense), but the plain language of the text of the U.S. Constitution says Congress has the power "To promote the progress of science and the useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and inventions." Neither publishers nor corporations are mentioned. Authors and inventors are supposed to benefit the greater human condition by being compensated for what they do.

I think Congress should give some thought to reining in the concept of "corporation" as "person." So often under the law, coporations get the rights, but not the duties or other obligations of personhood. I'd love to see that equation change.

Copyright booster I may be, but I really see no reason for the last increase in copyright term because it benefited corporations with no apparent benefit to the actual creators of works or their heirs. The 1976 Act had real benefits for the creators and heirs.

Thursday, January 4, 2007

Defending the Constitution?

From today's Findlaw article on the resignation of not-my-president's lawyer: "Harriet is one of the most beloved people here at the White House," [Tony] Snow said, adding that she was a scrupulous lawyer who aggressively defended the U.S. Constitution.

Would someone please explain to me how Harriet Meirs, who stood by as not-my-president lied to get us into a war, lied to subvert constitutional rights, and lied to wrestle two elections, could be described as someone who "aggressively defended the U.S. Constitution?" Boggles the mind, I tell you.