The Photography Law Handbook, Second Edition

by Steven M. Richman

Overview

The ethical and moral debate about photographic images in this global society continues to increase dramatically. Freedom of speech and the right of privacy are more and more in conflict. This updated book provides both a practical and personal perspective on the photographer's critical rights and obligations.

This unique resource covers core areas of intellectual property law, tort law, and criminal law and contains necessary information for lawyers, photographers, and content creators. The book covers copyright, privacy and defamation, trespass, social media—and includes discussions about the evolution of drone photography. Lawyer and photographer Steven Richman uses several additional cases and situations to illustrate the potential pitfalls a photographer may encounter.

Product Details

ISBN-13:	9781641059411
Publisher:	American Bar Association
Publication date:	05/02/2022
Edition description:	2nd Edition
Pages:	399
Product dimensions:	6.07(w) x 9.04(h) x 0.83(d)

About the Author

Steven Salky, a partner at Zuckerman Spaeder, LLP, represents individuals in white collar criminal cases, regulatory agency investigations, and civil litigation. He has extensive experience representing executives of public companies in securities fraud investigations and parallel civil litigations and has spent much of the past five years representing the former chief financial officers of Freddie Mac and Fannie Mae in proceedings arising from these companies' restatements of earnings. He regularly represents executives in environmental, antitrust, and healthcare fraud investigations, as well as professionals, including lawyers, doctors, and accountants, in litigation involving their compliance with professional obligations. While in law school Mr. Salky was awarded the Harlan Fiske Stone prize for the best oralist in Yale Law School's Moot Court Competition. After graduating from law school, Mr. Salky clerked for then Chief Judge Theodore R. Newman, Jr., of the District of Columbia Court of Appeals, before beginning a two-year teaching fellowship at the Georgetown UniversityLaw Center. As the Stuart Stiller Fellow at Georgetown's Criminal Justice Clinic, he represented indigent criminal defendants and supervised third-year law students in court.

Table of Contents

Acknowledgements xi

Preface to the Second Edition (2021) xiii

Preface (2014) xvii

Chapter 1 The Legal Terrain 1

Getting Started 1

The Prevalence of Image 4

Photography as Art 8

Critical Photography 14

Is This a Photograph? 18

Choice of Law 19

Territorial Considerations and Personal Jurisdiction 26

Criminal versus Civil Law 31

Civil Law versus Common Law Jurisdictions 32

Taking versus Using 32

Legal System in a Nutshell 33

Putting It in Perspective 33

Chapter 2 Understanding Intellectual Property 35

Introduction 35

Copyright 35

What May Be Copyrighted 36

The Berne Convention 39

Bundle of Rights 41

Can a Photograph Be Both Copyrighted and Trademarked? 42

Photographic Creativity and Originality 44

Scenes a Faire and Thematic Concepts 52

Merger Doctrine 60

Graffiti and Murals 62

Tattoos 63

Derivative Works 65

Registration 68

Proving Copyright Infringement 69

Access 76

Substantial Similarity 77

Contributory Copyright Infringement 83

Public Domain 83

Fair Use 84

Instagram 95

Parody 96

Appropriation Art 97

Other Exceptions to Exclusive Rights 100

Internet Issues 100

Joint Authorship 103

Collective Works 103

First Sale Doctrine 105

Government and Copyright 107

Sovereign Immunity 107

Remedies 111

Digital Millennium Copyright Act 112

The Communications Decency Act 115

Plagiarism 115

Architectural Works 117

Mannequins and Dolls 120

Moral Rights 122

Work for Hire 125

Putting It in Perspective 126

Trademark 127

Overview 127

Types of Trademarks 128

Passing Off and Reverse Passing Off 129

Distinctiveness 129

Trade Dress 130

Need for Use as Trademark 131

State Trademark Laws 131

Factors Constituting Likelihood of Confusion 131

Buildings 133

Artistic Expression 134

Celebrities 137

Trademark Fair Use 138

Trademark, Copyright, and the Public Domain 140

Contributory Trademark Infringement 141

Hyperlinks and Metatags 141

First Sale Doctrine 142

False Advertising 143

Putting It in Perspective 145

Trade Secrets 146

Chapter 3 Tarts, Privacy, Defamation, and Related Statutory Claims 149

Overview 149

Torts in General 150

Defamation 151

Privacy 163

The New York Statute 166

The California Statute 174

The Massachusetts Statute 176

Fourth Amendment Issues 178

Common-Law Claims 178

Intrusion upon Seclusion 178

Publication of Private Facts 182

False Light 184

Misappropriation 187

Drones 189

Unfair Competition Laws 191

Consumer Protection Laws 192

Characters 193

Anti-Paparazzi Laws 196

Photographing Minors 197

Right to Publicity (Celebrity) 200

Intentional and Negligent Infliction of Emotional Distress 204

Stalking 207

Nuisance 208

Interference with Contract/Prospective Economic Advantage 209

Misrepresentation and Fraud 211

Photographs as Evidence 214

Putting It in Perspective 215

Chapter 4 Contract Law 217

Contract Best Practices 217

Releases 226

Licensing 235

Express License 237

Implied License 240

Estoppel 241

Express Authority, Apparent Authority, and Implied Authority 243

Shrink Wrap, Browse Wrap, and Click Wrap 245

Satisfaction Contracts 248

Personal Service Contracts 253

Putting It in Perspective 255

Chapter 5 Property Law 257

Introduction 257

Private Property 257

Use of Images of Private Property 263

Public Property 266

Museum and Website Access Restrictions 269

Cameras in the Courthouse 271

Employer Cameras in the Workplace 272

Putting It in Perspective 273

Chapter 6 First Amendment Rights 275

First Amendment Rights of Photographers 275

Regulation of Street Photography 289

Security Concerns 290

International Considerations 293

Enforcement of Foreign Judgments and the SPEECH Act 297

Social Media, Gag Orders, and Prior Restraint 304

Terry Stops 310

When in Doubt 310

Practical Realities 311

Photographing Law Enforcement 311

Putting It in Perspective 314

Chapter 7 Ethics, Civil, and Criminal issues 315

Ethics, Morality, and Law 315

Duty to Rescue 320

Duty to Report and Seek Assistance 323

Manipulation 325

Individual Choices 328

Putting It in Perspective 329

Chapter 8 What Cannot Be Photographed 331

Obscenity and Pornography 331

Video Voyeurism 340

Currency, Checks, Stamps 344

Desecration of Flags 344

Special Situations 346

Foreign Conventions, Statutes, and Laws 347

Putting It in Perspective 360

About the Author 361

Index 363