Legal precedent set for photographers.

[BenE]

First let me state I am not a lawyer, and am only speaking from limited knowledge of how courts and the legal system work. However, I believe my statements about the ramifications of this court case are somewhat obvious since the mentality of the buying public has gotten to the point that a lawsuit can be brought for the most trivial matter. Remember the McDonald hot coffee situation? With that said, I believe the following conclusions about the logo and copyright being placed on a photographers’ work can be made without much argument.

It is not my aim to discuss whether any particular photographer uses, likes or dislikes a signature to be placed on a portrait. I am only stating what seems to be another blow for photographers and the right to protect their work in a manner they desire without worrying about being sued.
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A terrible legal precedent had been set due to the fact that a photographer was sued for placing a copyright and logo on the front of portraits. The judge ruled in favor of the client, and it seems the photographer had to refund all the money paid to the customer. (I do not have the details, and am assuming this from the article.)

This means that what has, for years and years, been a long standing tradition, right, and in years past an obligation of placing a logo on portraits in order to protect your image from copying will now be something you must inform each customer of, in writing. This appears to be needed in the form of a contract, and according to the photographer, a notice on all invoices, etc.

It would appear that one of a photographer's fundamental rights it to place a logo with the year in order to protect their work. Even though this is not a US Copyright office requirement anymore, they (the office) strongly suggests that a photograph do this. They do however state it can be on the back of the print.

Now that this precedent has been set in a court of law, it will be incumbent on every photographer to have wording about this and make sure that every customer signs a contract which will state that you (the photographer) will place your logo on the portraits. This requirement also means that regardless of the fact that the Copyright Office strongly advises photographers to use this method, that some judge has taken it upon themselves to place demands on photographers that no other professional artist is subject to. In the article, the photographer said the judge stated she (judge) would not want portraits of her family that “advertised” for a photographer.

So much for that, and now for another point. The PPA stepped in and paid for some of the costs of the photographer. I am not sure what those costs were, but it was covered by their indemnification plan, according to the article. OK.. Good for them. However, they seem to have overlooked the fact that the ruling will not only affect their thousands of members, but probably every portrait photographer in the US; at least those who still believe they should have a right to protect their work without having to inform each customer. In my opinion, they really dropped the ball and as usual instead of really defending photographers’ rights they just tossed out some cash to a member (for which I am glad), and are so satisfied they are the “Champions of Copyright Protection”.

They have allowed a judge in a local small claims court to chip away at photographers’ rights. Since I am no longer a member of the PPA I have no voice in what they do, but I hope those who are members see the troubling circumstance that has occurred and will ask PPA why they decided to only toss out some cash in stead of taking a real stand against this.

[rab3rd]

can he not appeal and have a higher court overturn it?

[L Stegall]

Can you give us a link to the article or decision? I'd like to read the actual decision before I comment.

I will say, though, that the McDonald's coffee "incident" that you refer to is always the one case everyone cites about frivilous lawsuits, yet few seem to know the actual facts, the extent of the actual injuries suffered, the reasons for the jury's verdict or the fact that the woman never ever got the punitive damages that were awarded and basically got her medical expenses covered. There was an earlier discussion about that case in another thread, so I'll leave it at that.

[BenE]

Originally Posted by L Stegall

Can you give us a link to the article or decision? I'd like to read the actual decision before I comment.

I will say, though, that the McDonald's coffee "incident" that you refer to is always the one case everyone cites about frivilous lawsuits, yet few seem to know the actual facts, the extent of the actual injuries suffered, the reasons for the jury's verdict or the fact that the woman never ever got the punitive damages that were awarded and basically got her medical expenses covered. There was an earlier discussion about that case in another thread, so I'll leave it at that.

My apologies for not providing a link to the article. I always question posts that have no references myself, but in my haste I just overlooked that.
I have no reason to doubt the truth of the article; however, I could find no reference to it on the PPA web site. All I did find was how they continue to send people to Washington to "fight for photographers' rights" when it comes to unauthorized copying.

I do not have a link to the actual court case decision, but the article by the photographer who was sued is under "current Issue" at:

TexasProPhotoMagazine.com

the article is p. 13 of the pdf.

It is only my opinion, but a situation of this magnitude should be something the PPA informs photographers about, especially their members. Of course they may have done that, but I am doubtful. Nevertheless, it is not a prominently displayed link on their website, that a non member can find.

Interesting that article by the photographer who was sued, a female by the way, is subtitled "Court Rules Against Photographer On Copyright", and she seems satisfied that she didn't have to pay too much to have it settled, but is not concerned, as far as I can tell, about the impact it will have on the profession; other than having to add the wording as I mentioned before.

I realize that small claims court has different rules concerning "witnesses" being present so I hope I am wrong about the PPA's lack of concern and that they will devote some time to having this case looked at.

As far as the McDonald comment. That was to only make a point about how quickly people will file a lawsuit, and I was not commenting on the merits of the case or the outcome.

[mdurisseau]

Another example of legislating from the bench...yes, I know that's not constructive. On the other hand, I would have to believe most clients, and this photographer did indicate how difficult they were, would not have this issue. There were signs WAY before this that indicated problems. In hindsight, the best thing she could have done was to walk away when the first problems arose.

Obviously, though, the judge did not know any better, IMHO.

[L Stegall]

Thanks for the link. I will read later when I have a chance. Often, what is reported in an article isn't exactly what the opinion said, but I also know that you can get some wacky decisions out of JP (small claims) courts.

As far as the McDonald's case, I don't know how "quick" that lady was to sue, but she did have some significant injuries and I don't think the true facts or the ultimate outcome ever were reported very well. I did happen to meet her attorney - had a mediation with him years ago and heard from him, first hand, many of the facts. Funny, but my own mom cited that case this week in a discussion we had and when I asked her what she knew about it, it turned out her perception of what happened and the reality of what happened were two quite different things.

[rab3rd]

Wheres Judge Joe Brown when you need him?

[Some Idiot]

wow, that is sad, and wrong

[L Stegall]

Okay, I read the article. And, I think the title is misleading a bit, because there wasn't a decision that she didn't own the copyright; rather, it was about placing a copyright logo on the print where it is conspicuous, because the judge didn't believe that was addressed in the contract. I'm not saying I agree with her decision, but please know that one does not need to have a law degree to be a JP in Texas - here are the requirements: http://www.texascounties4u.org/desc/descJP.pdf

It sounds like PPA gave her ideas to go into court on her own and represent herself, which is, after all, the way small claims court is designed, so that people with minor (i.e., less than a set dollar amount - not a comment on how important the issue is non-monetarily) can get their claim heard without having to hire a lawyer.

I'm still unclear on what exactly the claim was here or what the evidence was, but it sounds like perhaps a JP without a good understanding of the law applied her own personal opinion. Fortunately, one can appeal a JP decision by filing with the county court, at which time you have a "trial de novo" or a completely new trial. But, that will usually involve hiring a lawyer. Sounds like the photographer who got sued chose not to appeal and instead paid the verdict.

While I don't think this would be an issue for 99.9999% of one's customers, there is always that small percentage who are difficult just to be difficult. So, lesson learned that it doesn't hurt to have the language that the PPA suggested inserted in your contracts.

[ggeen]

First let me say that you wrote a very nice summary of the story. The story does not, how ever, state jurisdiction, or case title. This makes it difficult to look up and verify. What I will say is, if true, a sad story.

[BenE]

Originally Posted by ggeen

First let me say that you wrote a very nice summary of the story. The story does not, how ever, state jurisdiction, or case title. This makes it difficult to look up and verify. What I will say is, if true, a sad story.

Once again my apologies for not giving more information.

The case was not in Texas, but Virginia and I should have mentioned that. I suppose since I know of the photographer by reputation, I incorrectly made an assumption that her location was stated at the end of the article, which I see was not. There is a link to her website on the PDf and website link of my earlier post.
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Originally Posted by L Stegall

Okay, I read the article. And, I think the title is misleading a bit, because there wasn't a decision that she didn't own the copyright; rather, it was about placing a copyright logo on the print where it is conspicuous, because the judge didn't believe that was addressed in the contract. =============

It sounds like PPA gave her ideas to go into court on her own and represent herself, which is, after all, the way small claims court is designed, so that people with minor (i.e., less than a set dollar amount - not a comment on how important the issue is non-monetarily) can get their claim heard without having to hire a lawyer.

===========So, lesson learned that it doesn't hurt to have the language that the PPA suggested inserted in your contracts.

The fact that the title seems misleading has no bearing on what I believe is the problem. As I just stated above, the case was in Virginia.

My point, other than the fact that a precedent has probably been set, is the PPA paid the photographer's expenses, or some of them and walked away from it. If they did get involved before the case went to court, which they usually do, I strongly believe after this terrible decision was made by a small claims court, their legal people should have realized how serious this is, and will be in the future, and started an appeal. That can be done.

The photographer states when she contacted the PPA they immediately responded and were "shocked and disappointed". Evidently they were not shocked enough to appeal the case in her behalf, nor were they disappointed enough to do anything more than send the photographer a check.


I apologize again if I did not give enough information early on.

[L Stegall]

I agree that the title of the article had no bearing on the issue you raised. I just mentioned it as some antedotal evidence that what gets reported isn't always what happened. Just based on the title, I would have thought the article was over a different copyright issue.

And, I made the assumption that this was a Texas case because it was published in a publication targeted to Texas photographers, so that was my mistake. I did not look at her bio info if there was any. I have no idea what qualifications you have to have to be a JP in Virginia.

Sadly, from my reading of the article, it seemed like the photographer made the decision to pay and did so before she talked to the PPA folks about the decision. If so, there really wasn't much to appeal at that point, so she was reimbursed for what she paid.

Again, I'm not saying I agree with the decision at all. And, ironically, while the JP claimed that logos were "tacky" - people sure have spent a lot of money over the years to get that "tacky" logo stamped on portraits by well known and prominent photographers. It really was industry standard, but I doubt there was much testimony over that. I do agree, it's a bad decision, but it's also one that shouldn't be precedent elsewhere (like one from an appellate court of record).

[XtremePhoto]

I would have just refunded her money...HAD she returned ALL of my product. I would have been glad to do so however, I would have NEVER allowed her to keep product AND receive a refund for that product.

And we know that Judge has NO idea what Quality is...Portrait Innovations! We did that as a family and walked out without a purchase. Total Crap.

-G-

[ggeen]

Ben, thanks for bringing the issue to our attention. I don't fault you for not including detail information in your summary, the article SHOULD have done that. The article, as written, is just one side of the story. I think the author did a good job of sticking to the facts without getting emotional. Good for her!

Small claims court does not really set president. It is more of an arbitration forum. I am not overly concerned with the "ruling". I do agree, however, that a line item in the contract regarding copyrights and watermarking is a good idea for CYA reasons.

[Steelsun]

I am not a Lawyer either, but I think that small claims court cases are not considered eligible to be considered a "precedent" case by other courts.