Just Try to Keep This Plate Spinning

Over the past few days, I've been hearing that the artist responsible for the image on one of the California license plates has been trying to renegotiate the terms under which the state gets to use the image. There's an article in the Los Angeles Times, which you can link to here.

There are plenty of mistakes that were made in this arrangement. First of all, it is described as a "handshake deal," which is always a mistake but more so with something that is on-going. Then Wyland, an artist whose murals I've seen in several places (but didn't connect with the license plate until this article) claims he can change the terms of whatever agreement he had because he's the artist and owner of the intellectual property. Uh, that's a pretty stupid statement in terms of business arrangements which were done on a hand-shake. He's claiming the "license" was only for a term that is now over. If that is true, he could indeed ask for different terms to extend the use and the state has the right to find another artist.

If the new image looks too much like Wyland's, he might have a case for suing for copyright infringement but not if it's an independently created new image. Wyland doesn't have a monopoly on the idea of using a whale's tail to decorate a license plate for charitable purposes--despite the fact that the article quotes him as basing some of his claim on his "idea." Nope, only the expression is protected.

Wyland now gets 10% of the money for a plate he designed for Florida. Maybe he learned something about the value of his work after he did the California plate, got a real deal with Florida, and is trying to build on it. Apparently, Wyland wants to get 20% of the proceeds from the sale of the California plates to go to his own foundation--those of us in California pay a hefty premium every year to get these special plates and a nice portion of that goes to a particular charity or another. In the case of the whale tail, it goes to the California Coastal Conservancy. The photograph of the Wyland license plate appears at the left and it comes from the California Coastal Commission website.

It will be interesting to see what happens with this dispute. I've got a button which reads "This job would be great if not for the clients" and I sure wouldn't want either of these clients knocking on my door.

Here's my big advice for the day: even if it is for a cause you believe in, get the terms in writing. It protects both sides.

Personally, I've got the picture of Yosemite on my plates.

What First Amendment?

An article appeared in today's Los Angeles Times about the problems caused by the presence of paparazzi in Malibu. Here's the link. The problem is not limited to Malibu--wherever young celebrities hang out, so do photographers looking for that money-making shot. Apparently, the photographers travel alone and in packs in Santa Monica, Beverly Hills, and on Robertson (Avenue, Street, or Boulevard, I'm not sure) where there are lots of trendy boutiques.

Clearly, I don't go to many trendy places, because the only time I'm likely to see a swarm of photographers is when I'm walking a red carpet or when I'm in San Diego for Comicon, where the swarm follows the stars for their appearances. Last year, when David Beckham arrived in Los Angeles, I was driving home and saw a swarm of photographers along Pierce College's Victory Boulevard fence. Victoria Beckham was with the kids at a soccer match, so the little flies were buzzing. I'm not entirely sure it was legal for the school to keep the photographers at bay like that--it is a public school and it is, technically, public land. At least that's what the horse owners got told when we wanted to keep people from walking through the barns at Pierce and sticking their fingers in our horses' faces. Maybe Posh Spice smiled nicer than we did.

Like the situation at Pierce, I'm not sure that the mayor of Malibu, who is now trying to craft a law to keep the paparazzi at bay in her "Mayberry-like" community. For good or ill, the paparazzi are a part of the press, whether they are freelancers or in the employ of an agency. It seems to me that there are already laws in place upon which a particularly intrusive photographer can be dissuaded from pursuing his or her career, such as those against trespass, assault, battery, reckless driving, or false imprisonment.

While the main stream media often portrays the paparazzi as parasites, it seems that there is more of a symbiotic relationship between many of the paparazzi and their prey. People like Paris Hilton and Britney Spears would be long past their 15 minutes of fame but for their encouragement of the prying lenses. This isn't always the case. There are plenty of examples of the press or photographers actively goading celebrities into unflattering situations.

I want to make it perfectly clear that I believe everyone is entitled to some privacy. I don't believe that everything a celebrity does is news or my business. Going to a premier is public and most actors are gracious under those circumstances. Going out to dinner with friends or the family or going grocery shopping? That's private. Leave them alone. No one can be on 24-7 (except maybe I do expect a President who is, but I'm sorely disappointed these days) and even people who make their living by being famous are entitled to down-time.

California already has a law on the book by which a photographer can be prosecuted for invasion of privacy by using an extreme telephoto lens to get a picture within the confines of someone's home or yard. That may not be so bad, but finding a way to prevent reportage (and photographs are reportage, just like words are) because you don't like the "speakers" should face pretty high hurdles before enforcement. The problem is that many individual photographers aren't in any position to pay for the kind of legal fight opposing crippling legislation might cost. That's probably not a problem for TMZ and X17.

I've been hearing rumblings about what the mayor of Malibu is trying to do for several weeks. I'll be keeping my eyes and ears open for a more definite ordinance.

June 20 Program on Copyright and Trademark Issues

I'll be giving an overview of copyright and trademark issues concerning visual artists next Friday, June 20, for the Simi Valley Art Association. A couple of their members attended the program I did at Continental Art Supplies earlier this year and invited me to speak.

The 7:00 PM session will be held at the Community Room of the Simi Valley Public Library at 2969 Tapo Canyon Rd Simi Valley , CA 93063. Admission is free to students with accompanying adults. Non-SVAA members donate $7 at the door. (Proceeds go to the art scholarship fund for high school students.) The room has capacity for 120 people. My presentation should start about 7:15, after they finish with preliminary matters. There's plenty of parking and it's easy to find as it's next to the city hall.

So come on out and I can try to answer your copyright and trademark questions.

Intellectual Property Estates

I frequently get asked if I know any lawyers who can write a will for writers. That's because writers, like all visual artists, have an interest in seeing their intellectual property properly disposed of after death. It is not an area of the law in which I practice. Wills and trusts is an ancient and archaic area of the law and was my worst grade in law school (probably because the class was on a Friday afternoon for an ungodly number of hours and I could barely stay awake.) Lucky for me, it wasn't on the California Bar Exam except perhaps with some reference to community property, which I do grasp (no pun intended.)

My friend Neil Gaiman is on a crusade to make sure all writers have wills, because several other writers of both of our acquaintances failed to to do so (you can read the entire post here.) In both of those cases, the writers were not in good health for enough time to have taken care of the matter and didn't. Neil asked a lawyer friend of his, Les Klinger, to draw up a sample will, which he encourages people to pass on, so I will. You can find the PDF here. These are the suggestions Mr. Klinger makes:

1) Recopy the document ENTIRELY by hand, date it, and sign it at the end. No witnesses required.

2) Type the document, date it, sign it IN FRONT OF at least two witnesses, who are not family or named in the Will, and have each witness sign IN FRONT OF YOU and the other witnesses. Better yet, go to a lawyer with this form and discuss your choices!

California does recognize holographic wills--my husband and I both have them, although getting Len's through probate may wind up being pretty strange. Not all states do, however. The best advice is to take the draft to your own attorney and modify it to best fit your own situation. Most local bar associations can make referrals to specialists and the local version of the Volunteer Lawyers for the Arts is a good place to check as well.

Photographers are no less in need of wills to handle their photographic estates than writers are theirs. Photographs can have enormous historic value and it is a good idea to have someone in charge who knows what to do with them if your significant other or children don't. None of us knows what tomorrow brings, so don't be foolish. Get it done.

A New Twist on Infringement

Over at The Beat, Heidi MacDonald's blog for Publisher's Weekly on "comic culture," she reported that the entire contents of someone's website was "scraped" and published in a book selling for $100--without the permission of the website's owner. The story is here, with links to the offended website.

This is classic copyright infringement and the ripped off website owner should take immediate steps. The first of these is to get the material registered and after that 15 minutes, he needs to get a cease & desist letter out and, if appropriate, a DMCA takedown notice to any ISP which might be reproducing any of the material in the form of advertise the product. If the book is being sold on Amazon or e-Bay, I'd get letters off to them as well.

As most people should know, even without copyright registration, the website owner does own the copyright (and prudence says the copyright owner should have a prominent notice to that effect on the website itself.) It's just that registration is the key to the courthouse door and the key that opens the door to statutory damages and attorneys fees. It is cheap insurance.

The Copyright Office website has forms and instructions. The Library of Congress is hard at work trying to make on-line registration easier. You can get a deposit copy of a website by downloading it to a disk and then you should send it to the Copyright Office with the appropriate form and registration fee. Send it by Federal Express, or, if you live in the Washington, D.C. area, take it in by hand. U.S. Mail is slower. Registration is effective on the date of receipt by the Copyright Office, but it will probably take six months to get the certificate back. You can help yourself out by enclosing a self-addressed, stamped postcard with your registration materials with words to the effect of "The stamp of the Copyright Office hereon indicates receipt of the following: (1) [Description of the material being registered, i.e. PhotoLawyer's website and all contents on April 23, 2008 provided on one DVD]; (2) Registration form for [material being registered]; and (3) A check for the Registration Fee of [current amount.] The stamped date will let you know the effective date of registration. Then, if you want to file a lawsuit, you can state in your pleadings that registration has been applied for and the complaint will be amended as soon as the certificate is received.

Actual damages can be pretty low, which is what you are left with if you have not registered within 90 days of first publication or before any infringement has taken place. If you have a website, think about doing updates of your registration at least quarterly if you change your content frequently--you never know when someone might rip you off. In this case, actual damages would be based on the number of copies of the book sold. The website owner could also ask for, and probably get, the confiscation or destruction of the offending books (I'd probably ask for all the books and sell them myself) as well. So the damages might not be enough to make a lawsuit worth while.

If registration had been made on the material before this rip-off occurred, the website owner could have asked for $150,000 in statutory damages for each infringement (in this case there appears to be both a printed book and a disk of some kind) and attorneys fees, in addition to the confiscation or destruction of the material, which is a much better starting place for a law suit.

Copyright & Trademark Lecture

The California Lawyers for the Arts called yesterday and asked me to give a talk on "Copyright and Trademark Basics for Visual Artists," something I could probably do in my sleep since I've done so many of them.

This free brown-bag lunch event is at Continental Art Supplies, 7041 Reseda Boulevard, Reseda, California on March 17, 2008. On-site registration is at 11:15 a.m. and the talk is scheduled from 11:30 a.m. to 1 p.m. Call California Lawyers for the Arts at 310-998-5590 or e-mail them at UserCLA@aol.com. Space is limited to 25 people.

See you there, I hope.

Between the Cross-hairs

Common Dreams sent out a press release from photographer Jeffrey Sauger today. The text can be read here. Mr. Sauger of Royal Oak, Michigan and Jim West of Detroit were both arrested in Toledo, Ohio two years ago while covering "a rally by a small group of Nazis outside the Government Center building." According to the release, the police out-numbered the Nazis and the counter demonstrators by 5 to 1.

"Sauger was arrested on a charge of 'criminal trespass' as he tood in a media enclosure carrying professional cameras and lenses photographing the scene. Police charged that he lacked a 'temporary media permit' that had been issued to some journalists earlier in the day. Arriving later, carrying his own press credentials, Sauger said officers had told him he didn't need the pass.

"West was arrested as he stood, alone, taking photographs near a line of horses that was being ridden past and through counter protesters. He was charged with 'failure to disperse.'

"Charges of disorderly conduct against a third news photographer, Jeffrey Willis of the Toledo Journal, have been dismissed. Willis was also arrested while photographing the police response to a crowd of anti-Nazi protesters."

I note these are still photographers, not videographers for a TV station. More than 20 years ago, I was harassed by the DC police while covering an event for the Washington Post. The TV cameramen standing virtually next to me were not bothered. I have always theorized that they could have been on TV instantly but the paper wouldn't hit the stands until hours later. In this case, I suspect Mr. Willis was backed up by his newspaper's lawyers, whereas Misters Sauger and West are from out of town and were freelancers. They didn't have corporate lawyers backing them up.

Photographers have enough to do when on these kinds of assignments and the last thing a pro would be doing is interfering with the actual events. So they must have been photographing things that the police didn't want covered. The press release says the photographers were photographing how the police were treating the peaceful anti-Nazi protesters.

So the police were supporting the Nazi demonstrators?

I haven't uncovered any other coverage of this by the main-stream media. That's not a total surprise. Who cares about the rights of a couple of freelance photographers anyway? I do wonder if the National Press Photographers Association or Photo District News has covered this in any way. I don't recall seeing any squib in ASMP's literature, either.

Freelance photographers are really alone out on the front lines. They can make really easy targets for frustrated police officers.