The law ( in pland english) for photographers

(IN PLAIN ENGLISH) ® This page intentionally left blank (IN PLAIN ENGLISH)® © 2002 Leonard D DuBoff I t is possible that writings in this publication present information that may enable you to avoid legal problems However, none of the information in this publication should be construed to be an opinion or solution to a specific legal problem or particular configuration of facts Readers are urged to consult with an attorney when confronted with a legal question or issue All rights reserved Copyright under Berne Copyright Convention, Universal Copyright Convention, and Pan-American Copyright Convention No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior permission of the publisher 06 05 04 03 02 Published by Allworth Press, an imprint of Allworth Communications, 10 East 23rd Street, New York, NY 10010 Cover design by Leah Lococo Interior page design by Sharp Designs, Lansing, MI Page composition by Integra Software Services, Pvt., Ltd., Podicherry, India ISBN: 1-58115-225-6 Library of Congress Cataloging-in-Publication Data: DuBoff, Leonard D The law (in Plain English) for photographers/by Leonard DuBoff.—Rev ed p cm Includes bibliographical references and Index ISBN 1–58115–225–6 Potography—Law and legislation—United States Photographers—United States—Handbooks, mnuals, etc I Title KF2042.P45 D75 2002 34.73′ 07877–dc21 2002000203 Printed in Canada CONTENTS —— —— — — — — — — — — — — — — — — — — — — — — — — — — — — — — 10 — — — — 11 — — — — 12 — — — — 13 — — — — 14 ———————————————————————— Dedication vii ———————————————————————— Acknowledgments ix ———————————————————————— Introduction xi ———————————————————————— Intellectual Property ———————————————————————— Defamation and Libel 33 ———————————————————————— The Rights of Privacy and Publicity 49 ———————————————————————— Censorship and Obscenity 67 ———————————————————————— Governmental Licenses and Restrictions on ———————————————————————— Photographing Public Places and Private ———————————————————————— Property 85 ———————————————————————— Organizing As a Business 91 ———————————————————————— The Tax Consequences of a Business ———————————————————————— Organization 101 ———————————————————————— Tax Deductions for the Office at Home 121 ———————————————————————— What to Know about Leases 127 ———————————————————————— What to Know about Insurance 133 ———————————————————————— Contracts and Remedies 145 ———————————————————————— Dealing with Agents 163 ———————————————————————— Estate Planning 169 ———————————————————————— How to Find a Lawyer 181 ———————————————————————— CONTENTS Appendixes ———————————————————————— Forms—Releases, Bill of Sale, ———————————————————————— Commission Agreement, and Assignment ———————————————————————— Estimate/Confirmation/Invoice 187 ———————————————————————— Table of Cases 201 ———————————————————————— Organizations That Offer Help 207 ———————————————————————— Books and Resources 213 Index vi 217 DEDICATION T his book is dedicated to photography professionals who freeze time for posterity, and to my mother, Millicent, and my father, Rueben, for the gift of life and the inspiration to succeed vii This page intentionally left blank viii ACKNOWLEDGMENTS T he process of surveying photography professionals, collecting relevant material, processing it, analyzing it, and putting it in an understandable, useful form could not have been completed without the help of a number of friends Their contributions to this book are appreciated and worthy of note Unfortunately, it is not possible to identify all of the individuals who have contributed in some way to the success of this volume, and I apologize to those who have been inadvertently omitted from this list of people who have aided in preparing this second edition of The Law (In Plain English)® for Photographers for publication Almost a decade ago, I hired Christy King, the brightest student I had ever had the privilege of teaching, as a research assistant Later, when I started my own law firm, she became an associate and, more recently, a principal in this firm When I was requested to revise The Law (In Plain English)® for Photographers, Christy agreed to take over the revisions Collaborating with a person of her knowledge, skill, and ability is truly a privilege Christy, as collaborator, and I are deeply indebted to the following individuals for their help with this edition: I would like to thank Douglas P Cushing, J.D., for assisting with the estate-planning chapter Abby R Michels, J.D., and Grant D Stockton, J.D., Willamette University, College of Law, 2002, receive my thanks for their considerable time and consistent effort ix THE LAW [IN PLAIN ENGLISH] FOR PHOTOGRAPHERS Business Forms & Contracts (In Plain English)® for Craftspeople, 2d ed by Leonard D DuBoff (1993) Foreword by Lammot duPont Copeland Interweave Press 201 E Fourth Street Loveland, CO 80537 (800) 272-2193 The Deskbook of Art Law, 2d ed by Leonard D DuBoff, Sally Holt Caplan, and Christy O King (1993) Oceana Publications, Inc 75 Main Street Dobbs Ferry, NY 10522 (914) 693-8100 “Fire Safety Fact Sheet” Publications 91-41 and 3088 United States Department of Labor OSHA Information 200 Constitution Avenue, NW Washington, DC 20210 “Guide to the NEA” Visual Arts Fellowship Program National Endowment for the Arts 1100 Pennsylvania Avenue NW Washington, DC 20506 (202) 682-5400 TDD (202) 682-5496 Index Stock Imagery 23 West 18 th Street, 3rd Floor New York, New York 10011 (212) 929-4644 Information Service National Center for State Courts 300 Newport Avenue Williamsburg, VA 23185 214 APPENDIX “Insurance and Risk Management for Small Business” Small Business Management Series No 30, 2d ed Superintendent of Documents U.S Government Printing Office Washington, DC 20402 (202) 512-1991 “Insurance Checklist for Small Business” Small Marketer’s Aid #148 Answer Desk Small Business Administration 200 North College Street, Suite A-2015 Charlotte, NC 28202 The Law(In Plain English)® for Crafts, 5th ed by Leonard D DuBoff (1999) Allworth Press 10 East 23rd Street, Suite 510 New York, NY 10010 (212) 777-8395 or (800) 491-2808 The Law (In Plain English)® for Small Businesses, 3d ed by Leonard D DuBoff (1998) Allworth Press 10 East 23rd Street, Suite 510 New York, NY 10010 (212) 777-8395 or (800) 491-2808 Photography: Focus on Profit by Tom Zimberoff (2002) Allworth Press 10 East 23rd Street, Suite 510 New York, NY 10010 (212) 777-8395 or (800) 491-2808 Pricing Photography: The Complete Guide to Assignment and Stock Prices, 3d ed by Michal Heron and David MacTavish (2002) Allworth Press 10 East 23rd Street, Suite 510 New York, NY 10010 (212) 777-8395 or (800) 491-2808 215 THE LAW [IN PLAIN ENGLISH] FOR PHOTOGRAPHERS “Sound Cash Management and Borrowing” Publication FM9 SBA Publications, Answer Desk 409 3rd Street, SW Washington, DC 20416 “Tax Guide for Small Business” Publication 334 Internal Revenue Service U.S Government Printing Office Washington, DC 20401 (202) 512-1991 “Visual Art Fellowships” National Endowment for the Arts 1100 Pennsylvania Avenue NW Washington, DC 20506 (202) 682-5400 “Your Social Security” Social Security Office See telephone book in U.S Government pages for local office 216 INDEX INDEX abatement, 170 absence of actual malice, 44–48 absolute privilege, 53 actionable libel, 35–39 actual damages, 21 actual malice, 44 Adams, Ansel, 179 advertising deceptive, 154 defamatory, 38 Advocates for the Arts v Thompson, 80 agents, 163–168 personal, 166–168 precautions, 168 role in contracts, 167 stock, 163–166 AIDS anti-AIDS drug Crixivan for, 36 Air Pirates Funnies, 23 ambulatory will, 170 American Council of the Blind v The Librarian of Congress, 81 American Family Mut Ins Co v M B., 140 American Guarantee & Liability Ins Co v 1906 Co., 140 American Society of Media Photographers (ASMP), 6, 143 creation of copyright licensing organization, 28 American Tobacco Co v Werckmeister, 11 Americans with Disabilities Act (ADA), 130 amortization, 110 An Illustrated History of Pornography, 74 Anderson v Fisher Broadcasting Companies, Inc., 54 Andy Warhol Foundation v Federal Insurance Co., 140 Ansel Adams Publishing Rights Trust, 179 anti-paparazzi legislation, 52 appropriation, after celebrity’s death, 62 arbitration, 184–185 archives exempted uses and, 25–26 assignment agreement, 160–161 estimate/confirmation/invoice, 197–200 of ownership, representatives, 167 attorney, 25, 31, ix finding, 181–185 getting information on, 182–183 attorney-client relationship, 185 audit, 125 author, in copyright law, automobile, business use of, 111 average person, 76, 77 awards, deductible expense, 114–115 Baie v Commissioner, 123 bailee coverage, 142 bailment, 3, 157 Baltimore Orioles v Major League Baseball Players, 62 Bella Lewitsky Dance Foundation v Frohnmayer, 80 beneficiaries, 177 benefits, employee, 105–107 See also statutory benefit plans bequests, 170 Berne Convention, 2, 30 copyright notice under, 12–13 UCC (Universal Copyright Convention) and, 13 bill of sale, example of, 190–193 books, 213–216 Booth v Curtis Publishing Co., Holiday, 61 Brady Bunch, The, 36 Bridgeman Art Library, Ltd v Corel Corp., 28 Briscoe v Reader’s Digest Association, Inc., 55 Brockett v Spokane Arcades, Inc., 75 217 INDEX broken contracts, 153–156, 156–159 Buckley, William F., Jr., 41 Buller v Pulitzer Pub Co., 65 Burnett, Carol, 48 Business and Legal Forms for Photographers, 151 business deductions, qualifying for, 108–109 business-interruption, 139 business organization, 91–99 corporation, 95–98 limited liability companies, 98–99 partnership, 93–95, 96–98 sole proprietorship, 92–93 tax consequences of, 101–119 business-overhead-expense, 139 business secret, trade secret laws for, 31 Byron, Lord, 57 cafeteria plans, 106–107 camera floater, 139 cameras, hidden, 52 Campbell v Acuff-Rose Music, 23–24 canceled checks, 108 Cantrell v Forest City Publishing Co., 34 capacity to contract, 153–154 capitalization, 97–98 capital asset, 116 capital expenditures, 110 capital gains tax, 116–118 capital asset and, 116–117 Section 1231, 117 capitalization, 110 Carnal Knowledge, 75 Carpel v Saget Studios, Inc., 150 cases, table of, 201–205 catalogs, protecting photographs in, 17 cause celebre, 46 CCP See Center for Creative Photography CD-ROMs copyright and, 27–28 registration and, 17 celebrity’s death, appropriation after,62–63 censorship film processors and, 81 government funding for informal, 80–81 informal, 79–80 liability (prediction) of, 81–82 prior restraint and, 68–71 prohibition of commercial and, 69–70 218 prohibition of obscene speech and, 70 prohibition of political speech and, 68–69 prohibition of pretrial publicity and, 69 other problems of, 82–83 Center for Creative Photography (CCP), 179 Chandler v Florida, 88 charitable donations, deductible expense, 114 child pornography legislation, 78–79 Child Pornography Prevention Act, 79 Child Protection and Obscenity Act, 79 civil invasion, of privacy, 50, 65 client-attorney relationship, 185 closure legislation, 79 Clouds, The, 33 co-insurance clause, 137 codicil, 170 Colten v Jacques Marchais, commercial misappropriation, 61 commercial photographs, commercial speech, prohibition of, 69–70 commission agreement, 193–197 common law, common shareholders, 97 Community for Creative Non-violence v Reid, 5–6 community standards, 74–75 compensation, employee, 103–104 compilation copyright, 18 computers, copyrights and, 27–29 confidentiality and nondisclosure agreement, 31 consent, 42 Constitution, Article 1, Section of, 1–2 continuity of existence, 96 contract price of goods, 150 contract(s), 145–161, 164 agent’s role in, 167 assignment agreement as, 160–161 broken, 153–156, 156–159 capacity to, 153–154 definition of, 145–146 express, 146–147 illegal, 154–155 implied, 146–147 for insurance, 135–136 implied, 146–147 non-cost written, 150–153 oral, 148–150 INDEX possible scenarios in, 147–148 price of goods, 150 questionable, 153–156 sale of goods v sale of services in, 150 scenarios, 147–148 types of, 146–153 unconscionable, 155–156 void, 155 written, 148–153 control, 97 controversy, public, 46 conventions, deductible expense, 111–113 convincing clarity, 44 copyright, bill of sale, 192 Copyright Act of 1909, See also Berne Convention; copyright laws; Copyright Revision Act of 1976 copyright notice and, 12 errors in/omission of copyright notice and, 14–15 problem with, publication and, 11–12 Copyright Amendment of 1990, 26 copyright infringement, 19–25, 61 actual damages from, 19, 21 counsel for, 25 criminal enforcement of, 22 fair use and, 22–23 fair use in video industry and, 24–25 infringers’ access to protected work in, 19–20 injunctive relief for, 21 parody and, 23–24 photocopying and, 24 similarities of ideas and, 20 statutory damages and, 21 copyright law(s) Berne Convention and, definition of author and, difference between two, federal, 62 ideas and, 8–9 originality and, publication and, 11–12 US Constitution and, 1–2 writings in, copyright management information (CMI), 29 copyright notice, 12–15 errors in or omission of, 14–15 international protection and, 12–13 location of, 13 three elements of, 13–14 Universal Copyright Convention (UCC) and, 13 wording of, 13–14 Copyright Office, 7, changing rules of, 17 immoral/obscene works and, 10 location of copyright notice and, 13 mandatory deposit and, 15–16 copyright protection See copyright law(s) Copyright Revision Act of 1976, copyright notice and, 12 creation of, duration of copyrights and, 12 errors in/omission of copyright notice and, 14–15 fair-use doctrine under, 24–25 ideas and, involuntary transfer of copyrights and, publication and, 11–12 registration and, 16 savings clause in, 10–11 termination of copyright transfers and licenses, 7–8 wording of copyright notice and, 13–14 copyright(s) compilation, 18 deed of, duration of, 12 five exclusive rights of, foreign, international symbol for, 13 rules regarding ownership of, 4–8 savings clause of, 10 subject matter for, 8–11 transferring or licensing, 6–7 corporate shields, 96 corporation, 92, 95–98, 102–103 partnership’s difference with, 96–98 S, 98 Cory v Nintendo of America, Inc., 64 cost, lease, 128 costs, lowering, 142–143 counterclaim, 141 courtroom proceedings, photographing of, 87–88 Cox Broadcasting Corp v Cohn, 53 criminal cases, 44 criminal enforcement of copyright infringement, 22 criticism, 41, 46 critics, 41 219 INDEX Crixivan, 36 current expenses, 110 curtesy, 172 Daily Times Democrat v Graham, 52 damage(s) actual, 21 against loss of film/photographs, 157–159 proof of, 38–39 statutory, 21 D’Amario v Providence Civic Center Authority, 89 death taxes, 173 decency clause, 80 deceptive advertising, 154 deductible expenses, 109–115 awards, 114–115 business use of an automobile, 111 charitable contributions, 114 conventions, 111–113 entertainment, 111–113 grants, 114–115 prizes, 114–115 travel, 111–113 deductions home office, 121–125 qualifying for business, 108–109 deeds, recording of, defamation, 33–34 See also libel; slander advertising, 38 protection against, 48 defamatory material, 33 defenses of libel, 40–48 absence of actual malice, 44–48 consent, 42 opinion, 41 reply, 43 reports of official proceedings, 43 statute of limitations, 43–44 truth, 40–41 delivery, 131 bill of sale, 192 deposit(s) mandatory, 15–16 web site for, 16 derivative works, 3, 11 two examples of, 10 devises, 170 diary, expense, 108 Dietemann v Time, Inc., 51 220 Digital Millennium Copyright Act (DMCA), 28–29 disclosure, 54 disposition of property not willed, 171–172 distribution of property outside will, 176–179 of work, dividend preference, 97 DMCA See Digital Millennium Copyright Act Douglass v Hustler Magazine, Inc., 57, 61 dower, 172 droit moral, 30 drugs, 70 Eleventh Amendment, 26–27 Employee Retirement Income Security Act (ERISA), 105 employee(s) compensation, 103–104 highly compensated, 105 scope of employment and, 5–6 employers works made for hire and, 5–6 ennui, 122 entertainment, deductible expense, 111–113 ERISA See Employee Retirement Income Security Act escheat, 172 estate, taxable, 175–176 Estate of Hemingway v Random House, Inc., 56 estate planning, 169–179 wills and, 170–173 Ets-Hokin v Skyy Spirits, evidence, preponderance of, 44 executor, 172 exempted uses, 25–27 libraries, archives and, 25–26 sovereign immunity and, 26–27 exhibition, 30 existence, continuity of, 96 expenditures, capital, 110 expense diary, 108, 113 expenses See deductible expenses; specific expenses express contracts, 146–147 Factors Etc., Inc v Pro Arts, Inc., 63 fair use, 22–23, 30 videos and, 24–25 INDEX Faloona by Fredrickson v Hustler Magazine, Inc., 65 false light invasion, 61 portrayal of another in, 57–59 family, spreading income among, 115–116 Fanny Hill, 73 federal copyright law, 62 federal statues, 77–79 child pornography legislation, 78–79 pandering, 77–78 Federal Trade Commission (FTC), 154 fees, registration, 16 film processors, censorship by, 81 film(s) damages against loss of, 157–159 exempted uses of, 26 market value of, 158 fines, on works, 16 Finley v National Endowment for the Arts, 80 First Amendment protection, 44, 47, 52, 53, 54, 56, 62, 67, 70, 73, 87 first-sale doctrine, flag-desecration statues, 82 Flag Protection Act, 83 foreign copyrights, forfeiture legislation, 79 form(s) GR/CP, 17 list of, 187–188 VA, 16 free speech, 71 Friedan v Friedan, 55 fringe benefits, 107 FTC See Federal Trade Commission, 154 Galella v Onassis, 51 Gates, Bill, 166 general partners, 94 “get it in writing,” 132 gift tax, 173 gift-tax returns, 177 Ginzburg, Ralph, 48 Ginzburg v United States, 76 Goldwater, Barry, 48 Goldwater Amendment, 77 See also Postal Reorganization Act Gomes v Fried, 37 goods contract price of, 150 sale of, 150 Goor v Navilio, 157 government funding for informal censorship, 80–81 governmental items, restrictions on photographing, 86–87 Greenberg v National Geographic Society, 27 gross estate-estate taxes, 173–176 Gross v Seligman, 20 Hagler v Democrat News, Inc., 35 Hamling v United States, 76 hazard insurance, 139–140 Henderson, Florence, 36 hidden cameras, 52 Hoffman, Ethan, 159 Hoffman v Capital Cities/ABC, Inc., 61 holographic will, 170 home office deductions, 121–125 Horgan v Macmillan, Inc., 20 house accounts, 167 idea(s) copyrightability of, 8–9 similarities of, 20 illegal contracts, 154–155 immoral works, 10 immunity, sovereign, 26–27 implied contracts, 146–147 incorporation, of family, 116 independent contractors copyright and, 5–6 informal censorship, 79–81 government funding for, 80–81 infringement basis of, 19 penalties, remedies, injunctive relief, 21 innocent infringement, 13 insurance, 93, 133–143 contract for, 135–136 coverage in lease, 131 definition of, 134–135 hazard, 139–140 items needing, 138–142 liability 140–142 overinsuring of, 136–138 transit, 142 types of, 139–142 underinsuring of, 136–138 when to use, 138–142 Workers’ Compensation, 142 221 INDEX integrity, bill of sale, 192 intellectual property copyright law of, 1–29 moral rights of, 30 trade secret protection of, 31 trademark law of, 29–30 inter vivos gifts, 176, 177 inter vivos trust, 177 Intercourse, 74 Internal Revenue Code, 99, 105, 107, 118, 121 Internal Revenue Service (IRS), 174 international symbol for copyright, 13 Internet, 166 defamation on, 34 Internet service providers (ISPs), 29, 34 intestate property, 171 intestate succession, 171 intrusion upon another’s seclusion, 50–52 invasion of privacy, 65 Jackie Coogan legislation, 66 Jacobellis v Ohio, 72 Jagger, Mick, 54 J.C Penney, 28 Jenkins v Georgia, 75 joint works, Kaplan v Stock Market Photo Agency, Inc., 20 Kelly v Arriba Soft Corp., 29 Kennedy, John F., 22–23 Kerrigan, Nancy, 34 key person, 139 Kingsley International Pictures Corp v Regents of the University of New York, 76 Kois v Wisconsin, 73 Lady Chatterley’s Lover, 77 Lavin v New York News, Inc., 41 lawsuits, 141 registration as prerequisite to, 15–19 table of cases of, 201–205 lawyer See attorney lease(s), 127–132 cost, 128 deliveries and, 131 description of property, 128 insurance coverage in, 131 late rent and, 132 length of, 128–129 long term, 128–129 master, 132 222 remodeling and, 130–131 restrictions in, 129–130 security deposits, 131–132 security in, 131 utilities and, 130–131 Leibovitz v Paramount Pictures, Inc., 24 Leigh v Warner Bros., Inc., 19–20 Leverton v Curtis Publishing Co., 57 liability, 96 insurance, 140–142 prediction of, 81–82 libel, 27, 34 See also defenses of libel actionable, 35–39 defenses to, 40–48 publication and, 39 sue for, 39–40 trade, 38 “libel by thank you,” 38 libel per quod, 37–38 libel per se, 35–37 libraries exempted uses and, 25–26 Library of Congress, 16 license(s) private property, photography and, 85–86 public places, photography and, 85–86 licensing agreements, copyright, 6–7 termination of, 7–8 Life Magazine, 23, 178 limited liability company (LLC), 92, 98–99, 103 limited liability partnerships (LLP), 95 limited partnership, 94–95 liquidated damages, 159 litigation, 183–185 arbitration, 184–185 mediation, 184 small claims court, 183–184 living trusts, 173 LLC See limited liability company LLP See limited liability partnership long form releases, 188–189 long-term lease, 128–129 malice, 58 absence of actual, 44–48 malpractice coverage, professional, 142 Man–Woman, 74 management, business, 97 mandatory deposit(s), 15–16 Manual Enterprises, Inc v Day, 77 Marco v Accent Publishing Co., market value INDEX of film, 158 of pictures, 158 Martin Luther King Jr Center For Social Change, Inc v American Heritage Products, Inc., 63 Martindale-Hubbell Law Directory, 183 master lease, 132 materiality, 137 media, 87 Media Photographers Copyright Agency (MP©A), 28 mediation, 184 medical expenses, 106 Meiers v Commissioner, 122 Melvin v Reid, 55 Memoirs definition, 73 Memoirs v Massachusetts, 73 Memphis Development Foundation, 63 Memphis Development Foundation v Factors Etc., Inc., 63 Mendler v Winterland Production, Ltd., 27 Midnight in the Garden of Good and Evil, 19–20 Mieske v Bartell Drug Co., 157 Miller definition, 74–77 Miller v American Sports Co., Inc., 42 Miller v California, 74 minority shareholders, precautions for, 98 Moller v United States, 123 moral rights, 30 Morris v Business Concepts, Inc., 18 MP©A See Media Photographers Copyright Agency Myra Breckenridge, 41 Naked Gun: The Final Insult, 24 Namath v Sports Illustrated, 61 National Endowment for the Arts (NEA) funding, 80 National Endowment for the Arts v Finley, 80 National Enquirer, 48 National Geographic, 27 National Stock Network, 165 Near v Minnesota, 68, 70 Nebraska Press Association v Stuart, 69 negatives ownership of, New York Times, 27 New York Times Co., Inc v Tasini, 27 New York Times Co v Sullivan, 44, 58 New York Times Co v United States, 68 New York v Ferber, 78 New York World’s Fair 1964–65 Corp v Colourpicture Pub Inc., 89 Newport Harbor Art Museum v NEA, 80 newsworthy information, 53, 56, 88, 89 no-cost written agreements, 150–153 Nocturne in Brown and Gold, 41 nondisclosure agreement See confidentiality and nondisclosure agreement nonperformance, 146 nonrecognition of gain, 124 Nutcracker, The (ballet), 20 obscene material, 10 private possession of, 71 transportation of, 71 obscene speech, prohibition of, 70 obscenity, 67–83 child pornography legislation and, 78–79 community standards for, 74–75 federal statutes of, 77–79 forfeiture or closure legislation for, 79 Memoirs definition of, 73 Miller definition of, 74–77 pandering and, 76, 77–78 patently offensive, 75 prurient interest of average person and, 75–76 Roth definition of, 72–73 thematic, 76–77 official proceedings, reports of, 43 official public records, 53 Olan Mills, Inc v Linn Photo Co., 19 open policy, 134 opinion, 41 oral contract, 148–150 originality, Osborne v Ohio, 71 overhead business expense, 139 overinsurance, 136–138 owner of property releases, 189 ownership, transferability of, 96–97 pandering, 76, 77–78 Papa Hemingway, 56 parental consent, 65 parody, 23–24 partnership, 92, 93–95, 102 corporation and, 96–98 general, 94 limited, 94–95 limited liability, 95 223 INDEX patently offensive, 75 pension plan, 105 Pentagon Papers, 68, 69 Penthouse, 64 Penthouse Int’l., Ltd v Eastman Kodak Co., 81 People v Keough, 82 People v Von Rosen, 82 Peregrine v Lauren Corp., permissible prior restraints, scope of, 70–71 personal photographic agent, 166–168 personal property, 170 personal representative, 172 Philadelphia Newspapers, Inc v Hepps, 47 photocopying fair use and, 24 photographer(s) associations of, 21 caution for, 48 character of, 30 copyright ownership and, 4–8 economic interests of, 30 infringing copyrights of pictures photographed by same, 20 joint works and, keeping costs down, 142–143 lowering taxes for, 107–115 moral rights of, 30 principle place of business for, 122 publication and, 11–12 termination interests and, works made for hire and, 5–6 photographers’ organization, 207–211 photographic executor, 172 photograph(s) commercial, Copyright Act of 1909 and, of courtroom proceedings, 87–88 damaged, 156–157 defamation in, 34 exemption of protection in, 10 false light and, 57 governmental items and restrictions on, 86–87 location of copyright notice on, 13 lost, 156–157, 157–159 market value of, 158 old, 156–157 of private property, 89–90 224 protection of, in catalogs, 17 of public places, 87–88 release of, 64–66 trademark rights and, 29 photography law, ix photojournalists caution for, 48 intrusion suits and, 52 physical security, trade secret protection and, 31 pictures See photographs Playboy, 61 policy, 134 political speech, prohibition of, 68–69 pornography, 41 See also child pornography portrayal of another in false light, 57–59 Postal Reorganization Act, 77 See also Goldwater Amendment PPA Professional Photographers of America, 143 pre-problem counseling, ix predicting liability, 81–82 preferred shareholder, 97 preferred stock, 97 premium, 134 prescription drugs, 70 Presley, Elvis estate of, 62–63 pretrial publicity, prohibition of, 69 Pretty Woman, 24 printing press, print(s) first-sale doctrine and, purchasers of, prior restraint, 68–71 scope of permissible, 70–71 privacy, 27 civil invasion of, 50, 65 commercial appropriation of another’s name/likeness, 59–63 intrusion upon another’s seclusion and,50–52 laws, portrayal of another in false light and, 57–59 public disclosure of private facts and, 52–57 releases and, 64–66 rights of, 49–66 wrongful invasion of, 49 private facts, public disclosure of, 52–57 INDEX private property, photography of, 89–90 prizes, deductible expense, 114–115 probate, 176 professional malpractice coverage, 142 Professional Photographers of America (PPA), 143 profit motive, proof of, 108 profits, shared, proof beyond reasonable doubt, 44 of damage, 38–39 property See also private property lease and description of, 128 sale or exchange of, 117 scheduling, 138 protected work, 19–20 prurient interest, 75–76 public controversy, 46 public disclosure of private facts, 52–57 public domain copyright notice and, 12 works and, 10–11 public figure, 46–48, 54 public meeting, 43 public places, photography of, 87–88 courtroom proceedings, 87–88 publication, 11–12, 34, 39 publicity, 27 commercial appropriation of another’s name/likeness, 59–63 intrusion upon another’s seclusion and,50–52 portrayal of another in false light and, 57–59 public disclosure of private facts and, 52–57 prohibition of pretrial, 69 releases and, 64–66 rights of, 49–66 qualified plans, 106 Quantity of Copies of Books v Kansas, 70 questionable contracts, 153–156 raising capital, 97–98 real estate See devises reasonable accommodation, 130 reckless disregard, 44 record-keeping, of taxes, 107–108 red flag, 125 Regina v Hicklin, 72 Register of Copyrights, 16 registration acceptance of, 18 bulk, 17 fee, 16 form VA, 16 as prerequisite to filing lawsuit, 15–19 releases, 64–66, 188–190 long form, 188–189 by owner of property, 189 short form, 188 signature blocks for, 190 remedies, 145–161 remodeling, with a lease, 130–131 rent, late, 132 security charge, 132 reply, 43 reports, of official proceedings, 43 representation, 171 reproduction, of work, reservation of rights, 141 retirement benefits, 106 plans, 105 revocable will, 170 right(s) conflicting transfers of, derivative work and, moral, 30 to terminate a transfer, 7–8 Rivkin v Brackman, 158 Rock and Roll Hall of Fame, The, 29 Rock and Roll Hall of Fame and Museum, Inc v Gentile Productions, 30 Rogers v Koons, 22 Ronald v Village Voice, Inc., 56 Roth definition, 72–73 Roth-Memoirs test, 74 Roth v United States, 72 Rowan v U.S Post Office Dept., 77 Ruskin, John, 41 Russell v Marboro Books, 65 Ryan v Aer Lingus, 157 S corporation, 98 sale of goods, distinguishing sale of services, 150 sale of services, distinguishing sale of goods from, 150 sales tax, 118–119 savings clause, 10 scheduling property, 138 seclusion, intrusion upon another’s, 50–52 Section 1231, 117 Section 280A, 121 security deposits, 131–132 225 INDEX security, in leases, 131 Serial Killer, 36 service charge, 132 services, sale of, 150 settlor, 177 Sex Origins Illustrated, 74 shared profit(s), shareholder(s), 97, 107 common, 97 minority, precautions for, 98 preferred, 97 Sharon v Time, Inc., 44 Sherrill v Knight, 90 Shields by Shields v Gross, 66 SHL Imaging, Inc v Artisan House, Inc., 9–10 short form releases, 188 signature blocks, for releases, 190 single-publication rule, 39 slander, 34 small claims court, 183–184 Smokey Bear, 86 Society of Photographers and Artists Representatives (SPAR), 166 Socrates, 33 sole proprietorship, 92–93, 102 financial risks of, 92 Soliman v Commissioner, 123 Son-of-Sam laws, 154 Sony Corporation of America v Universal City Studios, Inc et al, 24–25 Southeast Bank, N.A v Lawrence, 62 sovereign immunity copyright infringement and, 26–27 Spahn v Julian Messner, Inc., 58 SPAR See Society of Photographers and Artists Representatives, 166 specific performance, 156 speech commercial, 69–70 free, 71 obscene, 70 political, 68–69 Stahl v Oklahoma, 90 state copyright law federal preemption of, stated value floater, 140 Statute of Frauds, 149, 151 statute of limitations, 43–44 statutory benefit plans, 105–107 cafeteria plans, 106–107 fringe benefits, 107 226 qualified plans, 106 statutory damages, 21 stock, preferred, 97 stock agents, 163–166 substantial performance, 146 Sullivan, L.B., 44 symbol for copyright, international, 13 Szabo v Errisson, 18 Tax Equity and Fiscal Responsibility Act (TEFRA), 101 Tax Reform Act, 101, 114 taxable estate, 175–176 tax(es) See also deductible expenses; deductions business organization and, 101–107 capital gains, 116–118 corporations and, 102–103 death, 173 employee compensation and benefits and, 103–107 gift, 173 gross estate-estate, 173–176 limited liability companies and, 103 lowering of, 107–115 record-keeping and, 107–108 partnerships and, 102 sales, 118–119 sole proprietorships, 102 Tax Equity and Fiscal Responsibility Act (TEFRA), 101 Tax Reform Act, 101, 114 taxpayer identification number, 108 Taxpayer Relief Act, 123, 124 two-tier, 103 taxpayer identification number, 108 Taxpayer Relief Act, 123, 124 Taylor, Elizabeth, 28 technology Copyright Act of 1909 and, Telecommunications Act, 34 termination interest, 7–8 testamentary trusts, 177 testator, 170 payment of debt, 170–171 Texas v Johnson, 83 The Merchant of Venice, 133 theatrical works, thematic obscenity, 76–77 Thirteenth Amendment, 156 Thurman, Uma, 54 Time, Inc v Bernard Geis Associates, 22–23 INDEX Time, Inc v Firestone, 46 Time, Inc v Hill, 59 Time, Inc v Ragano, 35 trade dress laws, 30 trade libel, 38 trade secret protection, 31 employee access limited in, 31 trademark, 27, 30 laws, 29–30, 89 transferability of ownership, 96–97 transfers, rights of cost of, termination of, 7–8 transit insurance, 142 travel, deductible expense, 111–113 Triangle Publications, Inc v Chumley, 36 trustee, 173, 177 trust(s), 173, 177 creator of, 177 life insurance, 178 living, 173 testamentary, 177 truth, 40–41 Live Crew, 23–24 two-tier tax, 103 U S Patent and Trademark Office, 30 UCC See Uniform Commercial Code; Universal Copyright Convention unconscionable contracts, 155–156 underinsuring, 136–138 underwriting, 134 Unified Credit, 176 Unified Estate and Gift Tax Schedule, 175 Uniform Commercial Code (UCC), 149, 151, 157, 165 United State v The Progressive, Inc., 69 United States Forest Service, 86 United States v Eichman, 83 Universal Copyright Convention (UCC), 13 unvalued policy, 134 utilities See leases valued policy, 134 Vanity Fair, 24 Vidal, Gore, 41 videos fair use and, 24–25 Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc., 69 visual- or auditory-enhancing device, 52 Visual Artists Rights Act (VARA), 30 void contract, 155 Walt Disney Productions v Air Pirates, 23 web sites for deposits, 16 MP©A, 28 Westmoreland v CBS, 45 Whistler, James, 41 White Studio, Inc v Dreyfoos, Willard Van Dyke Productions v Eastman Kodak, 157 Williams, Vanessa, 64 will(s) advantages of, 172–173 disposition of property not willed and, 171–172 distributing property outside, 176–179 estate planning and, 170–173 holographic, 170 lawyer’s assistance, 173 Woodsy Owl, 86 Workers’ Compensation insurance, 142 work(s) bulk filings of published/ unpublished, 17 copyright and, copyrightable derivative of preexisting, 11 depositing, 15–16 displaying of, distribution of, duration of copyrighted, 12 fines on, 16 immoral or obscene, 10 infringers’ access to protected, 19–20 public domain of, 10–11 works made for hire, 5–6 World Intellectual Property Organization (WIPO) stipulations of, 29 writings, in copyright law, written consent, 64 contract, 148–150 wrongful invasion, of privacy, 49 Young v United States, 109 Zimmerman, John G., 159 227 Books from Allworth Press Business and Legal Forms 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prove any deductible expenses Statutory Damages The. .. • The method of payment • The hired party’s role in hiring and paying assistants • Whether the work is part of the regular business of the hiring party • Whether the hiring party is in business • The provision of employee benefits • The tax treatment of the hired party In Peregrine v Lauren Corp., the court found that a photographer was working for hire when the employing advertising agency had the. .. guidelines that among other things are intended to reduce the unauthorized copying of professional photographs Contact one of these associations for a copy of the guidelines (see appendix 3) Injunctive Relief Even before the trial, the copyright owner may be able to obtain a preliminary court order against an infringer The copyright owner can petition the court to seize all copies of the alleged infringing... copyright The fact that the infringing party did not intend to infringe is relevant only with respect to the penalty All actions for infringement of copyright must be brought in a federal court within three years of the date of the infringement The copyright owner must prove that the work is copyrighted and registered, that the infringer had access to the copyrighted work, and that the infringer copied a “substantial... work Mandatory Deposit Under the deposit provisions of the new law, the owner of the copyright or the owner of the exclusive right of publication 15 THE LAW [IN PLAIN ENGLISH] FOR PHOTOGRAPHERS must deposit in the Copyright Office (for the use of the Library of Congress) two copies of the “best edition” of the work within three months after the work has been published In the case of an unpublished work,... there is no contractual agreement to the contrary, the photographer who is an independent contractor will own the copyright on these works 5 THE LAW [IN PLAIN ENGLISH] FOR PHOTOGRAPHERS In Community for Creative Non-violence v Reid, the court made it clear that a determination of the status of the person creating the work as either an employee or independent contractor must be made by considering the. .. in the movie and in advertising for the movie Warner Brothers shot its own images of the sculpture, and none of Leigh’s images were actually used by the movie company The court pointed out that the photographer’s copyright does not encompass the appearance of the sculpture itself Nor did the photographer have any rights in the sculpture’s setting The court pointed out 19 THE LAW [IN PLAIN ENGLISH] FOR. .. liability In this situation, the copyright owner’s remedy will be governed by contract law rather than by copyright law You should distinguish between the sale of a print and the sale of the copyright in that print If nothing is said about the copyright when the print is sold, you will retain the copyright Since purchasers may not be aware of this, you may wish to call it to their attention either in the. .. or on the back of the photograph Fourth is the right to perform the work publicly for example, in the case of an audio-visual work, to broadcast a film on television or show it in a theater Fifth is the right to display the work publicly Once the copyright owner has sold a copy of the photograph, however, the owner of the copy has the right to display that copy 3 THE LAW [IN PLAIN ENGLISH] FOR PHOTOGRAPHERS. .. exploit a work after the original 7 THE LAW [IN PLAIN ENGLISH] FOR PHOTOGRAPHERS transfer of copyright This right to terminate a transfer is called a termination interest In most cases, the termination interest will belong to the photographer, but if the photographer is no longer alive and is survived by a spouse but no children, the surviving spouse owns the termination interest If the deceased photographer ... new law, the owner of the copyright or the owner of the exclusive right of publication 15 THE LAW [IN PLAIN ENGLISH] FOR PHOTOGRAPHERS must deposit in the Copyright Office (for the use of the. .. final judgment is recorded Actual damages are the amount of the financial injury sustained by the copyright owner or, as in most cases, the profits made by the infringer In proving the infringer’s... on these works THE LAW [IN PLAIN ENGLISH] FOR PHOTOGRAPHERS In Community for Creative Non-violence v Reid, the court made it clear that a determination of the status of the person creating the