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WFH-101

July 29th, 2011 by Alicia Calzada

Work for Hire. To many it’s an ugly word. To others, it is just something they live with. What it shouldn’t be is ignored. If you are a freelancer, and you sign a contract providing for a work for hire, you need to know what it means. There are plenty of articles to tell you to avoid it and why, but this is intended to help you understand the basics.

What is a Work for Hire Contract?

Copyright is all about authorship. The author owns the copyright, that is, the right to copy and publish the work. When you are a staff photographer, the photos you produce on the job are automatically work for hire. The employer is consider the “author” and therefore they own the  copyright. So if it comes with a salary, benefits, insurance, and a 401(k), it’s probably a work for hire. The employer owns the copyright and all of the benefits that go with it, such as control over where and when it is published. The upside is that you have a salary, benefits, insurance and a 401(k).

What a work-for-hire contract does is create the same kind of relationship between a client and someone who is not an employee. In other words, the client gets the benefit of the copyright and total control over the work. But you don’t get a salary, insurance or a 401(k).  Not just any photo assignment is eligible for work-for-hire agreements. Rather, only “collective works, motion pictures, translations, supplementary work, atlases, and test material” can gain work-for-hire status which basically transforms the client into the author. Even if a work falls into a category making it eligible for WFH status, there must be an express agreement, signed by the photographer.

Is it a WFH?

How do you know if you are agreeing to a work for hire? First, as noted above, if you are an employee whose job it is to take pictures, this is a work for hire automatically. If you are a freelancer, the language in a work-for-hire contract will specifically say “work for hire” or “work made for hire.” Sometimes it will be a little more subtle and state that you are assigning the copyright, which has a similar practical effect. Most WFH contracts actually say both.

Signed Contract Required for WFH

It is important for both editors and photographers to know that outside of the context of employment, a work for hire only arises in circumstances where there is a signed contract and only is available in certain circumstances. There is no “implied” work  for hire. A client cannot tell you that “work for hire” is their policy and by working for them you automatically agree to it. You must actually agree to it in writing, before the assignment. Furthermore, a client cannot tell you after you have already shot the assignment that you must sign a WFH contract to get paid (this could be an ineffective modification, unless there is additional payment offered).

The Gray Areas

So, if you’re a full time staff photographer, it’s clear you’re in a work-for-hire when you are on the job. If you sign a work-for-hire contract for a photo assignment for a publication, you are probably in a work for hire. But there may be some less exact circumstances that you find yourself in.

I created this 3-step chart a couple of years ago to help clarify when something might legally be a work for hire, and when it isn’t. The chart examines a series of factors that make it more or less likely that it might be a work for hire. Click below to download it.

Work for Hire chart

“Work for hire” not the only words to avoid.

It is important to note that while “work for hire” ensures a transfer of copyrights, it is not the only way you can end up transferring your rights. Some contracts simply state that you “assign” your copyright to them. This also must be in writing, but it has the same effect. You should also watch out for contracts that give the client the “exclusive” right to use the photo. You may still retain the copyright in that case, but it’s pretty useless if you don’t have the right to use the photo.

It’s important not to be intimidated by this language, but to learn about it, and learn to spot it. If you are like most photographers, you will find that giving up your copyright is rarely a good deal, but many photographers also have decided that in a business, everything has a price, and there are some circumstances that warrant it. While photography can feel very personal, it is important to approach such business decisions from a business perspective.

Happy Shooting!

Posted in business, contracts, copyright, photojournalism, students | No Comments »

New Federal Cameras in Court Pilot Study Commences

July 27th, 2011 by Mickey Osterreicher

On July 18, 2011 the Judicial Conference of the United States began a three-year pilot project to evaluate the effect of cameras in federal district court courtrooms. Fourteen (14) federal trial courts are taking part in the federal Judiciary’s digital video pilot. The participating courts are:

  • Middle District of Alabama
  • Northern District of California
  • Southern District of Florida
  • District of Guam
  • Northern District of Illinois
  • Southern District of Iowa
  • District of Kansas
  • District of Massachusetts
  • Eastern District of Missouri
  • District of Nebraska
  • Northern District of Ohio
  • Southern District of Ohio
  • Western District of Tennessee
  • Western District of Washington

Courts participating in the experiment must follow Guidelines.pdf adopted by the Court Administration and Case Management Committee (CACM). Only civil cases in which all parties have consented to being recorded will be allowed to participate in the pilot with the approval of the presiding judge. Additionally, the parties will be required to consent to the recording of each proceeding in the case. Coverage of the prospective jury during voir dire is prohibited, as is coverage of jurors or alternate jurors.

The guidelines impose additional restrictions in that “pilot recordings will not be simulcast, but will be made available as soon as possible on www.uscourts.gov and on local participating court websites at the court’s discretion.” Only courts participating in the program may record court proceedings for the purpose of public release; courts not selected for participation in the program may not record and release recordings of their proceedings.

It is very important to note that only court personnel or its agents will be permitted to record the proceedings, with the presiding judge having the ability to instantly stop a recording if necessary. Recordings by any other entities or persons – including the media and its representatives – are prohibited. The guidelines also address camera placement and technical setup. Funding for equipment or technical support will be limited, and courts have been discouraged “from purchasing new equipment.”

Since 1996 the Conference has permitted camera coverage of oral arguments in federal courts of appeals at the court’s discretion. Currently both the Second and the Ninth Circuit allow such coverage. There is, however, an absolute ban on electronic media coverage of criminal proceedings in federal courts pursuant to Federal Rule of Criminal Procedure (FRCP) 53.

This is the second three-year experiment with cameras in the courtroom authorized by the Judicial Conference. The first was conducted between July 1, 1991 and June 30, 1993 with electronic media coverage of civil proceeding in six district courts and two courts of appeals. At the conclusion of the experiment in 1994, despite a report and recommendation stating that “the experimental media coverage did not create sufficient disruption to civil proceedings to warrant the continuation of the prohibition against such coverage” the Conference declined to continue camera coverage and the initial pilot program ended on December 31, 1994.

One of the first federal civil cases covered as part of the new pilot being heard in the Western District of Tennessee in Memphis, involves a local TV reporter who is suing for defamation because of pornographic images and derogatory comments allegedly posted on TheDirty.com website which she claims “could harm her career” (see: complaint).” Although the material was taken down, the plaintiff in Gauck v. Karamian sought a preliminary injunction at a July 21, 2011 hearing seeking to bar any re-posting of the same material.

Also see: http://www.commercialappeal.com.

For a more comprehensive study of cameras in federal court please be sure to look for “Cameras in the Courts: The Long Road to the New Federal Experiment” being published in early August in the Summer 2011 Edition of the Reynolds Courts & Media Law Journal. After print publication it can be found at http://www.courtsandmedia.org/journal.

Additional information regarding the new pilot project may be found at: http://www.uscourts.gov/news/

Posted in Access, Cameras in the Courtroom, Federal Court, First Amendment, multimedia, photographers, Photographers' Rights, photojournalism | No Comments »

Judge Hears Oral Arguments in Federal Case

July 11th, 2011 by Mickey Osterreicher and tagged , , , , ,

On Friday, July 8, 2011, U.S. District Judge Edward Korman heard oral arguments on a motion to dismiss in the case of Abidor v. Napolitano. The lawsuit, filed by the ACLU on September 10, 2010, in U.S. District Court for the Eastern District of New York on behalf of Pascal Abidor, the National Association of Criminal Defense Lawyers (NACDL) and the National Press Photographers Association (NPPA) seeks declaratory and injunctive relief from what are alleged to be unconstitutional government policies.

Specifically the complaint alleges that policies of the Department of Homeland Security (DHS) that “authorize the suspicionless search of the contents of Americans’ laptops, cell phones, cameras and other electronic devices at the international border . . . violates the constitutional rights of American citizens to keep the private and expressive details of their lives, as well as sensitive information obtained or created in the course of their work, free from unwarranted government scrutiny.”

The lead plaintiff in the case, Pascal Abidor, is a 27-year-old U.S.-French dual citizen, residing in Brooklyn. He is a Ph.D. student at the Institute of Islamic Studies at McGill University in Montreal, Canada. On a train ride home from school in May 2010 he was questioned by agents of the U.S. Customs and Border Patrol (CBP) at the Quebec-New York border crossing. Because he admitted to having traveled in the Mideast agents requested that Mr. Abidor allow them to review the contents of his laptop computer. After he complied and some of the material he had collected had been reviewed he was frisked, handcuffed and taken to a nearby jail cell where he was interrogated. He was released a few hours later without his computer, which the government held for eleven days.

Both the NACDL and the NPPA joined in the suit because their respective members – lawyers and photographers – routinely travel abroad for professional purposes and bring their electronic devices with them. The lawyers often need to gather confidential evidence and information critical to the defense of their clients. Photographers record and collect newsworthy interviews and stories, often promising anonymity to their sources in exchange for their cooperation. Both organizations each had a named member subject to similar searches at the border but also argued that many of their members could be at risk when re-entering the U.S.

Not surprisingly the government moved to dismiss on the grounds that the plaintiffs lacked standing to challenge the policies because they could not demonstrate the likelihood of future harm along with being the specifically subject to the government policy. The government also argued that the policies do not violate either the Fourth Amendment, which protects citizens against unreasonable search and seizure or the First Amendment, protecting free speech.

A long line of cases have held that border and customs agents have broader scope than police officers in searching people and their possessions; as well as to detain and seize them without probable cause, reasonable suspicion or a warrant. During the oral argument Department of Justice Senior Counsel Marcia Sowles argued that electronic devices are essentially no different than luggage or other tangible items. “Just because it’s on a computer, it shouldn’t be more protected,” she said. “To carve out this exception would be creating a giant loophole.”

Judge Korman, who seemed to embrace the government argument, repeatedly asked ACLU attorney Catherine Crump to justify why electronic devices should have greater protection than confidential information found in a briefcase or luggage. In requesting that Judge Korman “do something that other judges haven’t done,” Ms. Crump asserted that the incredible amount of personal information stored on these devices and used on a daily basis by the public should afford them such increased protection.

Despite those assertions the judge appeared to retain an anachronistic approach to the question and did not seem inclined to distinguish current technology and data storage from searches of papers and other tangible possessions at the border. He also articulated a somewhat flawed analogy when he said that if he didn’t want to go through security when flying domestically he could take another mode of transportation, thus overlooking the fact that all those wishing to return to/enter the U.S. have to go through customs and be subject to search. The judge also expressed the unrealistic view that if people didn’t want the government to search their devices they should travel without them.

Even if it were practical to leave electronic devices at home when traveling abroad some would argue that the press must still return with the materials they have gathered while out of the country. Additionally the judge failed to take notice that digital files are instantly viewable and can be copied easily & quickly whereas film and videotape could not be viewed or copied in the same manner. When asked, the government admitted that they had copied Mr. Abidor’s drive under the pretext of not wanting to corrupt or delete any files, which reinforces the previous point.

A ruling on the motion to dismiss is expected in the next few months. Depending on the basis of the decision either party might appeal. For another story on the subject see: http://www.cbsnews.com/stories/2011/07/09/eveningnews/main20078170.shtml

Posted in First Amendment, Fourth Amendment, Legal, photographers, photojournalism | No Comments »

TSA Sends Letter Assuring Photographers’ Rights

July 1st, 2011 by Mickey Osterreicher and tagged , , , , , ,

In response to concerns expressed by the NPPA the TSA has sent a letter regarding photography, videotaping and filming at airport security passenger screening checkpoints. Margot Bester, Principle Deputy in the TSA Office of Chief Counsel said, “please be assured that TSA’ s goal is to protect passenger’s rights, including the right to record at passenger screening checkpoints, while ensuring that passenger screening operations can take place in an effective and efficient manner. We will continue to strive to meet this two-part commitment.”

By way of back ground, on 6/3/11 TSA posted the following to their blog (http://blog.tsa.gov/):

You may have seen the video of a woman at Phoenix Sky Harbor Airport who was upset about her screening experience.

 
TSA takes all allegations of improper screening seriously and investigates each claim to the fullest. After reviewing this passenger’s time at the checkpoint, we found that our security officers acted properly and neither the CCTV footage nor this YouTube video support any of the allegations levied. Real violations of our protocols are worth every ounce of our energy to investigate, but this alleged incident does not meet that threshold.
 
This incident has also raised many questions about whether or not passengers can film at checkpoints. This topic is currently under review, but you can read this blog post on our current  policy for photography at checkpoints.

Blogger Bob
TSA Blog Team

On 6/9/2011, NPPA general counsel, Mickey H. Osterreicher, faxed the attached Napolitano Letter 06-09-11 to Secretary Napolitano.  Later that day TSA posted the the following update:

 

***Update: 6/9/2011 – There have been many different interpretations of the photography portion of this post, so I wanted to clarify things a bit. We recognize that using video and photography equipment is a constitutionally protected activity unless it interferes with the screening process at our checkpoints. While our current policy remains the same, TSA is reviewing our guidance to officers at the checkpoint to ensure consistent application. Our goal is to protect passenger’s rights, while safeguarding the integrity of the security process. ***

On a related note from the Department of Homeland Security please go to: http://www.scribd.com/doc/47627164/FPS-Information-Bulletin for the unclassified Federal Protective Service Information Bulletin regarding Photographing the Exterior of Federal Buildings

 ******UPDATE In response to a request please see the DHS reply Napolitano Response 06-22-11

Posted in Access, First Amendment, Photographers' Rights | No Comments »