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    Photo Scam – Photographers Beware

    August 29th, 2014 by and tagged , , , , ,

    NPPA has been notified of an attempt to scam a photographer by soliciting work and then sending an “accidental” upfront deposit payment for more than the amount quoted using a fake check, and then following up with a request for the return of the overpayment from the photographer.  Fortunately the astute photographer was warned by his bank that the check was a fake and was able to avoid losing any money. NPPA reminds its members to be wary of these unsolicited offers of work, especially ones that are from unknown clients. Never agree to return money to an unknown person who claims to have overpaid you for a deposit.  Check with your bank to verify the validity of checks before making any deposits as such action could cause your financial institution to cancel your accounts in addition to costing you bank fees.

     

    Posted in business, National Press Photographers Association, NPPA, Scam | No Comments »

    NPPA Seeks Repeal of D.C. Regulations Limiting Street Photography

    October 31st, 2011 by Mickey Osterreicher

    On Monday, October 31, 2011 NPPA general counsel, Mickey H. Osterreicher, sent a letter to the Hon. Irvin B. Nathan, Attorney General for the District of Columbia. The letter dealt with Police Regulations for the District of Columbia that affect photographers. In it referred to Article 31, Chapter 24, §§ 521 – 523, respectively entitled “Street Photography: Business Licenses,” “Street Photography: Individual Photographers” and “Street Photography: Requirements and Restrictions.” Of concern to the NPPA is the vague and overly broad language contained in these regulations that may be open to misinterpretation and abuse of discretion by police in their enforcement.

    Specifically, §24-521.1, states “No person, firm, or corporation shall engage in the business of taking photographs of any person or persons upon the streets, sidewalks, or other public spaces of the District of Columbia, for profit or gain, without first having obtained a license to do so from the Mayor (emphasis added).  Section 24-522.1, states “No individual not licensed under §521 shall take a photograph of any person or persons, for either direct or indirect profit or gain, upon any of the streets, sidewalks, or other public spaces of the District of Columbia persons, without first having obtained a license to do so from the Mayor as provided in this section” (emphasis added). Additionally, §24-523.3 states “While engaged in taking photographs, no person licensed under §521 or §522 of this chapter shall impede traffic as defined in the District of Columbia Traffic Acts; nor shall any photographer remain longer than five (5) minutes at any one (1) location on the streets, sidewalks, or other public spaces” (emphasis added).

    In the letter Osterreicher asserted that “these three vague and incrementally overly broad sections taken together could be interpreted to mean that any photographer taking a photograph of anything, be it a building, person or inanimate object for longer than five (5) minutes would be in violation of the regulations and subject to fine or arrest.” “We contend that this licensing scheme, based upon regulations that are facially inconsistent with the protections provided under the First Amendment, is unconstitutional,” he added.

    Osterreicher went on to say that “these facially defective regulations will only further contribute to the erroneous belief by law enforcement that public photography may be arbitrarily limited or curtailed.” He requested that these regulations be repealed immediately and in the alternative proposed to work with Attorney General Nathan “to draft revised language that would be more narrowly tailored to serve a substantial government interest as a reasonable time, place and manner restriction on commercial photography.”

    The NPPA is concerned, given the recent penchant for police to interfere with, harass and in many cases arrest photographers, that these infringing regulations would provide the police with unbridled discretion to abridge the rights of photographers covering such events as “Occupy Wall Street” or any situation involving “photography of any person(s)” or lasting longer than five (5) minutes in any one location.

    It is believed that these regulations were put in place to regulate photographers who (acting as something like to commercial street vendors) take photographs of others on a public street and then attempt to sell prints or copies to the subjects of those photos. None of the regulations actually define the term “street photography,” which has a more common definition as “a type of documentary photography” practiced by such world renowned photographers/photojournalists as Henri Cartier-Bresson, Alfred Eisenstaedt and Robert Frank to name a few.

    Posted in Access, business, D.C., District of Columbia, First Amendment, First Amendment rights, law, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Regulations limiting photography, Street Photography | No Comments »

    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 »

    Is Your Internship Legal?

    May 22nd, 2010 by Alicia Calzada and tagged , , , , , , , , , , , , , , ,

    With the school year wrapping up, another Internship season is upon us. So I thought it might be worth re-hashing an issue that I posted on my personal blog a couple of months ago about labor laws and free internships. Here it is:

    You need an internship. Companies love having interns because it lightens the work load, they get to nurture and identify young talent and it supports the industry to train future photographers.

    There is an interesting article in the New York Times about the expanding trend of unpaid internships and the reality that some unpaid internships violate federal wage laws.

    I also found a useful evaluation at this link.

    One of the big concerns is that unpaid internships are being used to replace paid workers in this economic recession. This is certainly true in the photojournalism world.

    Some states require that an intern receive school credit in order to be eligible as an unpaid intern.

    The Department of Labor has provided a set of guidelines to determine whether someone is a trainee, entitled to not being paid (this is relevant for Fair Labor Standards Act- i.e., whether or not minimum wage laws are being violated).

    There is also a report by the Economic Policy Insitute on the trends and need for reform for internships.

    According to the DOL, there are six factors used for determining if someone is an employee or trainee:

    1. The training, even though it includes actual operation of the facilities of the
    employer, is similar to what would be given in a vocational school or academic
    educational instruction;
    2. The training is for the benefit of the trainees;
    3. The trainees do not displace regular employees, but work under their close
    observation;
    4. The employer that provides the training derives no immediate advantage from the
    activities of the trainees, and on occasion the employer’s operations may actually
    be impeded;
    5. The trainees are not necessarily entitled to a job at the conclusion of the training
    period; and
    6. The employer and the trainees understand that the trainees are not entitled to
    wages for the time spent in training.

    “If all of the factors listed above are met, then the worker is a “trainee”, an employment
    relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker.”

    This does not affect non-profits using volunteers.

    You may think this is overkill when you have a student willing to work for free in exchange for valuable experience, but this is extra important for photographers because the consideration of whether someone is an employee is also important for consideration of who owns the copyright. Also, if there is an on-the-job injury or a sexual discrimination case, employment status is extremely important.

    Do you want to know if the free internship program at your paper is in compliance with the law? To be sure, better ask your corporate counsel.

    Posted in business, contracts, interns, photographers, photojournalism, students | No Comments »