Privacy - SportPhoto

Here you can find our Privacy Policy, and how we make it work with every Copyright question you could have.

Collection of your Personal Information

SportPhoto may collect personally identifiable information, such as your name. If you purchase any of our products and/or services, we collect billing and credit card information via Smugmug softwares. These informations are used to complete the purchase transaction. We may gather additional personal or non-personal information in the future.

Informations about your computer hardware and software may be automatically collected by Smugmug. These informations can include: your IP address, browser type, domain names, access times and referring website addresses, and are used for operating the service, to maintain quality of the service, and to provide general statistics regarding use of the website. Please keep in mind that if you directly disclose personally identifiable information or personally sensitive data through SportPhoto message board, this information may be collected and used by us, but if so, it will be uniquely in order to perform whatever request you may have sent us. SportPhoto crew encourages you to review the privacy statements of this website (and Smugmug's ones as well) so that you can understand how those websites collect, use and share your information.

SportPhoto is not responsible for the privacy statements or other content on websites outside of the SportPhoto website.


Use of your Personal Information

SportPhoto collects and uses your personal informations through Smugmug's platform, in order to operate its website and deliver the services you have requested. Therefore SportPhoto does not sell, rent or lease its customer lists to third parties. SportPhoto may share data with trusted partners to help perform statistical analysis, send you email or postal mail, provide customer support, or arrange for deliveries. All such third parties are prohibited from using your personal information except to provide these services to SportPhoto, and they are required to maintain the confidentiality of your information. SportPhoto will disclose your personal information, without notice, only if required to do so by law or in the good faith belief that such action is necessary to:

(a) conform to the edicts of the law or comply with legal process served on SportPhoto or the site;

(b) protect and defend the rights or property of SportPhoto;

(c) act under exigent circumstances to protect the personal safety of SportPhoto users, or the public.

SportPhoto secures your personal information from unauthorized access, use or disclosure. SportPhoto will occasionally update this Statement of Privacy to reflect company and customer feedback. SportPhoto encourages you to periodically review this Statement to be informed of how SportPhoto is protecting your information.

SportPhoto welcomes your questions or comments regarding this Statement of Privacy. If you believe that SportPhoto has not adhered to this Statement, please contact us via the provided contact form on this website.


Effective as of December 02, 2015


Copyright

Copyright © 2015 by SportPhoto - All rights reserved.

The content (images and/or words) found on this website are copyrighted by our authors and creators and may not be reproduced or used in any manner whatsoever without the express written permission of the publisher. You may link back to any of the content here but please don’t copy them onto your site without both attributing their respective authors and linking back to this site.

Copyright law can be difficult to understand at times, thus we will try to get you to understand the way copyright works, and how we as visual artists rely on copyright protection to earn our living. This should help you dispel many misconceptions about the laws on copyright, but if you are facing any legal issue with copyright violation, please seek for legal advice.  Hereafter you will find some valuable information about the subject of copyright and how it affects photographers. Please remember that SportPhoto relies on a Smugmug platform, and since Smugmug is a California based Company, Commercial, Privacy and Copyright aspects all fall under Californian and American Federal Laws and Regulements, no matter where you are based.

From PACA (Picture Archive Council of America)

Copyright Education – Copyright Commandments

1. The moment a photograph is created, it is protected by copyright.

2. The photographer has the exclusive right to authorize use of a photograph during his/her lifetime plus 70 years.

3. Written permission to use a photograph should be obtained in advance to avoid infringement.

4. Infringement is any unauthorized use of a photograph, absent some exemption such as fair use or limited classroom use.

5. Exceeding the terms of a license is an infringement. You should obtain a new license before making any new uses of a photograph.

6. Penalties for infringement are monetary and can be severe.

7. Combining or altering photographs may require permission from the copyright holders.

8. Creating a painting or a sculpture from a photograph is an exclusive right of the copyright owner and you should obtain permission first.

9. Reshooting or replicating a photograph is an unauthorized copy and requires permission from the copyright owner.

10. Using all or some of a photograph as reference for a second work may require permission from the copyright owner.

Photography and Copyright Law


Q: The term “Copyright” is often misunderstood. Especially when it comes to art and photography. The first and most obvious question would therefore be; What is Copyright?

In simple terms, copyright for photographers means owning property. With ownership, you get certain exclusive rights to that property. For photographic copyrights, the ownership rights include:

(1) to reproduce the photograph;

(2) to prepare derivative works based upon the photograph;

(3) to distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) to display the photograph publicly;

Found in the U.S. Copyright Act at 17 U.S.C. 106 (http://www.copyright.gov/title17/92chap1.html#106)

Q: What is the difference between copyright and creative commons?

Creative Commons is a type of licensing. Licensing means that you grant others some of the rights that you have to the photograph. For example, you may allow someone to reproduce your photo in the December issue of a magazine. You still own the copyright to the photograph, but you allow someone else to use a piece of it. Creative Commons provides different licensing packages without pay. The packages allow some flexibility with your licensing, such as whether you allow commercial use of your photo and whether you require certain attribution, such as your name or website, with the use.

Q: Does a creative commons license mean that I can use the photograph any way I want, for free?

If you offer licensing of your photo through Creative Commons, someone may use your photo for free but that person must follow the of the conditions of the license that you select. The Creative Commons license options include: “Attribution” (this license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation); “Attribution-NonCommercial” (this license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms); and “Attribution-NonCommercial-NoDerivs” (this license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially).

Q: Who owns the copyright in a photograph once it is taken?

In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the “work-made-for-hire”(also known as “work for hire”) category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer—an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.

Q: If I don’t register my copyright, do I still own the copyright to my photos?

Yes. When a photo is not registered with the US Copyright Office prior to an infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or standard licensing fees plus profits derived from the infringement, if not too speculative. One source for standard license fees is a software program called Fotoquote.

Q: Should only Americans register their copyright with the Library of Congress in the United States?

No! All unpublished photos, regardless of the nationality of the photographer, are protected in the United States. Any photo that is protected by US copyright law can be registered, which includes works of foreign origin.

If your photos are first published in the United States or in a country with which the US has a copyright treaty, they also are protected and may therefore be registered with the US Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the US, then you can register your photos with the US Copyright Office. See Circular 38a, International Copyright Relations of the United States, for the status of specific countries.

Q: What is the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act (DMCA), enacted in 1998, implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many issues, one of which affects photographers directly.

The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright infringement. Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this provision.

If you find a website that is using one of your images without permission, contact the hosting ISP and report the infringement. The DMCA also provides for certain damages when your work is infringed. If the infringer has removed your copyright management information, such as your name, contact information, or copyright notice, from your work in an attempt to facilitate or conceal its infringement, the infringer may have violated the DMCA. Section 1202(b) of the DMCA prohibits the removal of “copyright management information” in certain circumstances.

It states in pertinent part: No person shall, without the authority of the copyright owner or the law—(1) intentionally remove or alter any copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

The statutory award for each violation of Section 1202 ranges from $2,500 to $25,000. The DMCA is another important tool in the photographer’s legal toolkit.

Q: If I am photographing a job for a client, does the client own the copyright or do I?

See above regarding the “work-made-for-hire” discussion.

Q: Do I need a model or property release to own the copyright in my photograph?

Copyrights and rights of privacy for people are different rights. When photographers take photos of people, they must be careful to not invade their privacy. This happens when someone enters a person’s private domain in a manner that would be considered offensive to the average person. As a photographer, the act of going on someone’s land without permission would be trespassing and also may violate the person’s right of privacy. You don’t have to take a photo or publish an image photo for the action to be unlawful. Some courts have found that a photographer has violated privacy rights even when photographing someone in public. Instances would include cases where the photographers harass their subjects, use hidden cameras, or wait for a woman’s skirt to be blown at a fun house. It also is unlawful to view and photograph people inside of residences or other places where privacy is normally expected, even when the photographer is standing in public.

After the photo is taken, however, the photographer should be concerned with the person’s right of publicity. You violate a person’s right of publicity when, without permission, you use a photo of a person for your own benefit. The “editorial” use of a photo is not considered a use of the person’s image for your own benefit. “Commercial” use is different because the use benefits the photographer, so you need the person’s consent to use their image. If you get a model release signed by the subject, you are free to use the image commercially, i.e., for advertising.

If an image is used in a newsworthy item then that constitutes an editorial use. In such cases, a person’s rights are evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press interest and is broadly construed. Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms, not limiting it to the dissemination of news in the sense of current events. They have extended it well beyond that to include all types of factual, educational and historical data, even including entertainment and amusement and other interesting phases of human activity in general.

Commercial use of a photograph usually occurs when the picture of the person has been used purely for “advertising purposes.” While the photograph of a person may be used for something that is sold for profit, such as for use in a book or as a photographic print, selling the photo is not the test for a commercial usage. Using a picture of a person in advertising or for trade without consent may violate the person’s right of publicity, especially when it injures the economic interests of the person due to commercial exploitation. If someone looking at a photograph would think that the person in it is promoting or endorsing a product affiliated with the photograph, then the use is commercial. When the photo of a person is incorporated into a product such as a tee shirt, the use is commercial. At times, it is difficult to determine if a usage is considered commercial or editorial, so it is always safer to get the model release.

In general, if property is visible and can be photographed from a public place, you don’t need a property release to use an image that depicts the property and you may use the photo in any manner. Copyright law provides an exclusion for photographing buildings located on property, but not for statues or other items that may have separate copyrights. There also are restrictions on some governmental property. These include federal seals and insignia as well as military or nuclear installations due to security concerns. If the statue or copyrighted item has minimal presence in your image, your photo may fall under the exclusion due to fair use. Otherwise, you must get permission to take an image and to use it for any purpose.

Nevertheless, some companies have tried to prevent the use—both commercially and editorially—of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the Lone Cypress tree on the 17 Mile Drive at Pebble Beach, CA, the Golden Gate Bridge, and the “Hollywood” sign. While these attempts have been unsuccessful, it can be expensive to litigate them.

Q: What is “Fair Use”?

Fair use is the right to use copyrighted materials without the copyright owner’s permission. It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without permission as long as they do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work. The classic example of fair use is the quotation from a book being reviewed. Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.

Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too.

Specifically, Section 107 of the Copyright Act states that: the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

(4) the effect of the use upon the potential market for or value of the copyrighted work. 17 USC Section 107. http://www.copyright.gov/title17/92chap1.html#107

All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair. The “purpose and character of the use” is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work. A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works. An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book. While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example. When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer – such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field.

Q: What is public domain?

When a work is not protected by copyright law, it is considered as being in the “public domain” and any one may use the work without permission.

Q: What is a derivative work and who owns the copyright?

A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other types of modifications. The work must be different enough from the original to be regarded as a new work—in other words, it must contain some substantial, not merely trivial, originality. The threshold for originality in a derivative work is higher than that required for the original work. The person who creates the derivative owns the copyright to revision, annotation, or other type of modification only. The original copyright is still owned by the original creator.

Q: Is copyright violation a crime?

The Copyright Act includes elements of crimes related to copyright. http://www.copyright.gov/title17/92appg.html The government usually prosecutes only the most egregious cases, such as counterfeited goods.

The interview above was realized by Ken Kaminesky, interviewing Carolyn E. Wright of the Law Office of Carolyn E. Wright, LLC. She is a full-time attorney whose practice is aimed squarely at the needs of photographers.