The Court Of Public Opinion

Photographers often follow certain legal practices to protect themselves, but cannot be sure that they will work when challenged. One such example is using a model release to obtain a models permission to use photographs taken of him or her in specific ways. The good news is that the standard model release was recently put to the test, and it passed with flying colors.

In 2002, Russian tennis player, Anastasia Myskina, who then was 20 years old, posed for photographs by Mark Seliger. Seliger first photographed Myskina for the Gentleman’s Quarterly’s 2002 Sports issue and then photographed her topless. Myskina had signed a model release that said she consented to the use of her name and the pictures by the magazine and by others it may authorize, for editorial purposes.

After winning the French Open in 2004, a Russian newspaper published the topless photos. Myskina filed an $8 million lawsuit against the publisher, Conde Nast Publications Inc., Gentleman’s Quarterly and Seliger alleging emotional distress and economic injury.

The New York judge who presided over the case held that Myskina’s rights were not violated despite her insistence that she did not understand the signed model release and was not fluent in English at the time. Instead, the Judge stated that, absent allegations of fraud, duress or some other wrongdoing, Myskina’s claimed misunderstanding of the release’s terms does not excuse her from being bound on the contract. Nor can she avoid her obligations under the release because of her purported failure to read its contents.

Even though the photographer allegedly told Myskina that the topless photos were for himself, the Judge found that the oral agreement contradicted the plain language of the written agreement and was not admissible. The Judge then dismissed the case.

As a photographer, it is important to protect yourself as much as possible. Fortunately, the model release is one way that has been proven to be effective.

Take my advice; get professional help. PhotoAttorney

Copyright 2005 Carolyn E. Wright All Rights Reserved

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In general, if property is visible and can be photographed from a public place, you dont need a property release to use the image in any manner. This exclusion to copyright law includes buildings located on the property, but not statues or other items that may have separate copyrights. There also are restrictions on some governmental property for security purposes, such as federal seals and insignia, and military or nuclear installations. But if the statue or copyrighted item has minimal presence in your image, your photo still may fall under the exclusion. Otherwise, you must get permission to use the image for commercial purposes.

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 at Pebble Beach, CA, and the Hollywood sign. While these attempts have been unsuccessful, they can be expensive to litigate. Is it worth it to you to spend thousands of dollars to test this issue? Thats a choice youll have to make.

If you want to avoid this battle, though, check the list of properties and objects collected by the Picture Archive Council of America that have been reported by its members to be allegedly protected. http://www.stockindustry.org/resources/specialreleases.html

On the other hand, photographers should protect their rights, too. Dont be intimidated from photographing what is within your legal rights. Check with an attorney to fully understand and exercise your privileges.

Take my advice; get professional help.

PhotoAttorney

Copyright 2005 Carolyn E. Wright All Rights Reserved

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Contracts are the foundation of all business transactions, the agreements that bind people to their word. So, what constitutes a violation of a contract?

When is a Contract Violated?

A contract is simply an agreement between two or more parties to do something. A simple example might be a situation where I agree to sell you a car. In such an agreement, I am binding myself to deliver the vehicle to you. In turn, you are agreeing to deliver money or some other agreed thing to me in exchange for my act. Ah, but what if things dont work out?

A violated contract occurs where one or more parties do not live up to the terms of a contract. Using our example above, I would be in violation of the contract if I did not actually sign over title to the car or give you the keys. You, in turn, would be in violation of contract if you did not give me the money or wrote a bad check. Either of these failures would be enforceable in a court of law.

Importantly, not all violation of contract situations carry the same wait. To give grounds to a lawsuit, the violation must be material. What does this mean? Well, it depends on the law of your state. In general, a material violation is a significant failure to meet the contractual terms. For instance, if I forget to sign something on the title transfer for the car in our example above, but then do so when you raise the issue, I am not in material violation of the contract. You were not really harmed in any significant way.

As you might imagine, businesses spend a lot of time in court arguing about these situations. What is material and what is not is often determined by the situation. Assume I order 1,000 toys from you for delivery on November 25, the day after Thanksgiving. Something comes up and you cannot deliver them till the following Monday. Is this small delay a violation of the terms of contract? On one hand, it is only a few days. On the other, those days occur right in the middle of the biggest shopping period for toys each year. There is no absolute answer to the question, but a court is probably going to be receptive to my claim against you.

What is a violation of the terms of a contract? Typically, it is something more than just a minor failure or delay in meeting a contractual obligation.

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For many people, the court system might as well be a maze. When it comes to a business dispute over a contract, the court system works in a particular manner.

What Courts Hear Contract Disputes?

The court system in the United States actually makes a lot of logical sense if you understand the terminology used. Well, if you are an attorney. The system is broken down by subject matter and then categorized by objective issues like the amount of damages being claimed. Common court branches include criminal, civil and family law divisions to mention just a few.

What court hears business contract disputes? Contract issues are covered under a set of laws known as civil law. If you have been in a lawsuit, you know it is rarely civil! The term, instead, refers to the matter being monetary in nature. At its root, the dispute has money at issue. Contract disputes fall within the business law and civil court jurisdiction. Ah, but there is more.

While civil courts hear contract disputes, the specific court is determined by the amount of money at issue. The exact amounts differ by state, but generally there are three levels. Small claims civil courts decide matters under $5,000 or so and you are not allowed to use an attorney. These are the disputes you see on television. Municipal civil courts usually hear contract disputes that have monetary values above small claims levels but below $25,000. If the claim involves an amount over $25,000, then it is heard in superior court.

Before heading off to court, it is important that you first read the contract in question very closely. Most contracts these days contain arbitration clauses. Arbitration is an effort to resolve things without taking up the time and resources of the court system. If you have such a clause, the parties typically agree to have a retired judge here the dispute and render a judgment in favor of one party.

Business contract disputes happen each and every day. Civil courts are usually going to handle them, but make sure you to check for arbitration clauses.

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