Please update your bookmarks for my new website/blog as of 11/22/2010 to www.dennisbeckphotography.com. All of the information has been transferred and is up and running. Please feel free to comment, contribute or contact me if you have any questions.
A Conversation with Attorney Carolyn E. Wright
By Martha Blanchfield
Carolyn Wright is an avid photographer, attorney and author ofwww.photoattorney.com, a rich resource Web site that covers a wide range of issues and topics of interest to photographers. In her 18 years’ work as an attorney she has worked on hundreds of cases—most of which have been resolved without formal litigation. The most common matter she handles is the unauthorized use of her clients’ photographs.
“Photographers have many misconceptions about copyright laws and intellectual property rights based on conversations they have had with colleagues and/or inaccurate information obtained from the Internet. My Top 10 List came about as a way to combat the spread of this misinformation,” Wright shares, whose areas of practice deal with intellectual property, including copyright and trademark law, rights of privacy and publicity, and contracts and licensing.
“Unfortunately, the services of an attorney are sometimes required to enforce ownership rights, but a photographer should do all that is possible in advance of engaging legal counsel,” she notes. “One of the most important things is to register the copyright to all of his or her images that have been distributed to others (especially those on the Internet) with the U.S. Copyright Office. A second task for photographers seeking to make money with their photography is to really learn how to run and proactively manage a business.”
Top 10 Misconceptions
1. You don’t need permission to photograph a work of art that is in a public area.
This rule is based on copyright law. United States Copyright Law grants exclusive rights to the copyright owner of a creative work, including the rights to: reproduce the copyrighted work; prepare derivative works based on the copyrighted work; distribute copies of the copyrighted work to the public; and/or display the image. (See 17 USC §106.)
When those rights are infringed the copyright owner is entitled to recover damages suffered as a result of the infringement. (See 17 USC §504). So even when a creative work is in a public area you may photograph it only if the work is in the public domain or your photograph makes a fair use of the work.
A recent case discusses such a situation: www.photoattorney.com/?p=1158
2. A news publication may use your photograph without your permission because it is fair use.
The answer is not so easy. Wright notes that some individuals claim that use of a photograph for educational or newsworthy purposes is okay under “fair use.” The doctrine of fair use means that copying will not infringe a copyright when it is “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”
Four factors are considered to determine whether the use of a photograph qualifies for fair use:
- The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit or educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the copyrighted material that is used.
- The effect of the use upon the potential market for or value of the copyrighted work.
But the answer is not so easy. For more insight, see Wright’s post covering two different outcomes when a newspaper used photographs: www.photoattorney.com/?p=199
3. You need a model release to use a photograph of a person on a book cover.
In general, the use of a person’s image on a book cover was considered to be an editorial use that would not need a model release. Recently, however, a New York court determined that a model release was needed for a cover of a fiction book. While this ruling has created an anomaly, it’s always safest to obtain a signed model release.
4. If you make money from a print, it is a commercial use.
Just selling a print or licensing a photo does not make the transaction a commercial use of a photograph. Instead, a commercial use of a photograph generally occurs when the photo is used for advertising, endorsement or trade.
5. You need a property release to use a photograph of a house for a commercial use.
No court or state has established a law—either by statute or through court rulings—creating a right to protect or prevent property from being photographed from a public area, or from that photograph being used editorially or commercially. Thus, no legal reason exists for a “property release,” except perhaps when photographing other copyrighted works or trademarks. Note that some stock agencies require a property release for fear of being sued.
6. You have no copyright protection for your photos until you register them.
Copyright exists in your photographs at the moment you click the shutter. While you do not have to register your photos with the U.S. Copyright Office for them to be protected by copyright, there are many reasons to register them. When a photo is not registered with the U.S. 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.
Note also that to file a lawsuit in the U.S. for copyright infringement, the photo must be registered.
The U.S. Copyright Office now allows for registration of certain copyrighted works online using the eCO system. Currently, you may use eCO to register any number of unpublished images, a single published image and multiple images that were all first published in the same “unit of publication.” Registrations of a group of separately published photographs at this time must be submitted on Form VA only, with optional use of continuation sheet Form GR/PPh/CON. The Copyright Office expects that these group registrations will be allowed using the eCO system soon.
7. Statues and other works of art on federal or state property are in the public domain.
Works in the “public domain” are creative works that are not protected by copyright. Works are in public domain either because: (1) the author failed to satisfy statutory formalities to perfect the copyright; (2) it is a work of the U.S. Government; or (3) the term of copyright for the work has expired.
Item (1) refers to work published prior to March 1, 1989. The copyright notice had to be affixed to the work or it immediately lost protection (the copyright protection for some foreign works has been restored even if they were published without notice before that time). Works published without the copyright notice between 1/1/78 and 3/1/89, the effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years—such as by placing notice on unsold copies. The law has changed so that works published after that time do not need the copyright notice for protection, but it’s a good idea to use it anyway.
Item (2) provides that works of government employees, such as maps, charts and surveys are in the public domain from the date of creation.
Item (3) allows a certain time of copyright protection for the benefit of the creator. The time for that protection has changed several times over the years, so it’s difficult to explain when works fall into the public domain. The chart found at www.unc.edu/~unclng/public-d.htm is helpful to determine dates.
Sometimes, however, copyrighted works are created by non-government personnel for the government, such as when the government commissions a piece of art. The artist later transfers the copyright to the government. The “government works exception” then allows the federal government to hold the copyrights for those works transferred to it by assignment.
Some have argued that the government is using this exception unfairly and as a workaround for copyright law. So far, it has been used to prevent the copying or creation of derivative works from items such as a film series on early Supreme Court cases to the Sacagawea coin.
The Vietnam Women’s Memorial Foundation, Inc. (VWMF) has used the exception as a basis to sue those who have sold photographs of the Vietnam Women’s Memorial. The Memorial is a bronze sculpture created by Glenna Goodacre of Santa Fe, NM. It resides on the grounds of the Vietnam Veterans Memorial in Washington, D.C., and depicts three women and a wounded soldier. Goodacre reportedly transferred the copyright for the sculpture to the VWMF, which has sued various entities that allegedly sold photographs of the sculpture.
8. Photographs of works in the public domain also are in the public domain.
Unless the photos are exact copies (often referred to as “slavish copies”) of the creative works that are in the public domain, they are entitled to protection under copyright law (see response to #1).
9. If a stock agency requires a model or property release, then it must be legally required.
In general, you may photograph people when they are in public. The use of those photographs, however, can be restricted due to certain privacy rights. Privacy rights are recognized in most states, but are different for each state. Since it’s tricky to know what you can do, the safest approach to follow is the most restrictive one.
One right of privacy—also known as the right of publicity—is the commercial appropriation of someone’s name or likeness. This happens when the name or likeness of someone is used without consent to gain commercial benefit, such as when a photograph of a person is used in an advertisement without the person’s permission. You don’t need a model release to use a photograph of a person for editorial purposes. Since it’s sometimes difficult to tell whether a use of a photograph is commercial or editorial use, it’s best to get a model release. Further, since stock agencies want to avoid lawsuits, they may require a model or property release in an abundance of caution, even when they are not needed.
10. If you take a photograph while working, the copyright to the photograph always belongs to the employer.
Section 101 of the copyright law includes one of the definitions of a “work made for hire” as: (1) a work prepared by an employee within the scope of his or her employment. Thus, while you may take a photo while on the job, if photography is not within your job description, then you, not your employer, own the copyright to the image. When the copyright belongs to your employer, it is as if you never took it and you may not use it for any purposes unless authorized by the employer or the law (such as a fair use). For more reading consider: http://www.photoattorney.com/?p=282 andhttp://www.photoattorney.com/?p=267 .
For more information, including case studies, visit Carolyn E. Wright’s blog at www.photoattorney.com, or contact her using firstname.lastname@example.org.
Martha Blanchfield is creator of the Renegade Photo Shoots (www.renegade-pr.com) and a freelance marketing and public relations consultant.
I’ve walked past this building on Central Park West and 85th street several times this week and saw the birds flying around. I didn’t have my camera with me, but I made a point of going back and hoping for the shot I wanted. This is a historic brownstone on Central Park that has always fascinated me and I wanted to see it in Black and White. I hope you like the results.
One of the most challenging montage or masking jobs in the profession of post-production editing is the hair lift. When the model has long flowing hair and the subject needs to change location many post-production artists call in sick. Get it wrong and, just like a bad wig, it shows. Extract filters, Magic Erasers and Tragic Extractors don’t even get us close.
Portrait image by Dan Stainsby
The first secret step must be completed before you even press the shutter on the camera. Your number one essential step for success is to first shoot your model against a white backdrop, sufficiently illuminated so that it is captured as white rather than gray. This important aspect of the initial image capture ensures that the resulting hair transplant is seamless and undetectable.
The post-production is the easy bit – simply apply the correct sequence of editing steps and the magic is all yours. This is not brain surgery but follow these simple steps and you will join the elite ranks of Photoshop gurus around the world. Celebrity status is just a few clicks away.
The initial steps of this tutorial are concerned with creating a mask that can be used in the final montage. Start by dragging the background layer to the New Layer icon to duplicate it. Choose ‘Remove Color’ from the Adjust Color submenu found in the Enhance menu (Enhance > Adjust Color > Remove Color).
Drag this desaturated/monochrome layer to the New Layer icon in the Layers palette to duplicate it. Set the blend mode of this new layer (now on top of the layers stack) to ‘Overlay’ mode.
From the Layer menu choose ‘Merge Down’ to create a single high-contrast monochrome layer. Select ‘Black’ as the foreground color and the ‘Brush tool’ from the Tools palette. Choose a large hard edged brush and 100% opacity from the Options bar and set the mode to ‘Overlay’ (also in the Options bar).
Painting in Overlay mode will preserve the white background and darken the rest of the pixels. Accuracy whilst painting in Overlay mode is not a concern when the background is white or is significantly lighter than the subject. Avoid going anywhere near the tips of the hair at this stage.
Even the bright tones of the white shirt can be rendered black by repeatedly clicking the mouse whilst using a large brush in Overlay mode. Again it is important to avoid going anywhere near the hair.
Darken the body of the hair near the scalp but avoid the locks of hair that have white background showing through. Painting these individual strands of hair will thicken the hair and may lead to subsequent halos appearing later in the montage process.
Switch the blend mode of the brush in the Options bar to ‘Normal’ mode when painting away from the edge of the subject. This will ensure a speedy conclusion to the mask making process. The mask is now ready to use in the montage.
Note > If any of the background has been darkened in the process of creating a black and white mask switch the foreground color to ‘White’ and choose ‘Overlay’ in the Options bar. Paint to render any areas of gray background white. It is again important to avoid painting near the edges containing delicate hair detail.
With the Remove Color layer selected add a Levels adjustment layer. Without making any adjustment simply select OK. This Levels adjustment layer has a layer mask that we can use to house the mask that we have created in the previous step.
The next step relocates the mask you have just created into the layer mask of the adjustment layer. From the Select menu choose ‘All’ and from the Edit menu choose ‘Copy Merged’. Hold down the Alt key and click on the layer mask thumbnail in the Layers palette. The image window will momentarily appear white as you view the empty contents of the layer mask.
From the Edit menu choose ‘Paste’ to transfer the contents of the clipboard to this layer mask. Click on the layer below to select it and then click on the Visibility icon of this layer to switch it off. This mask layer serves no purpose now that it has been successfully transferred to the adjustment layer mask.
The new background is placed on its own layer above the figure and mask layers. Drag the thumbnail of this new file into the image window of your project file from either the Photo Bin or the layer thumbnail in the Layers palette. Group this new background layer with the adjustment layer beneath (Layer > Group with Previous). Alternatively you can hold down the Alt key and click on the dividing line between the two layers to group them.
Grouping the new background with the adjustment layer will mask the background in the region of the figure but the quality will not yet be acceptable. Setting the blend mode of the adjustment layer to ‘Multiply’ will bring back all of the fine detail in the hair. The background will be not darkened by applying the ‘Multiply’ blend mode as white is a neutral color. The subtle detail in the fine strands of hair will however be preserved in all their glory.
The accuracy and quality of the edge of the mask will usually require some attention in order for the subject to achieve a seamless quality with the new background. Make a selection of all of the edges that do not include any hair detail using the Lasso tool with a small amount of feather set in the Options bar. With the adjustment layer mask selected choose the ‘Gaussian Blur filter’ (Filter > Blur > Gaussian Blur) and apply a 1- to 2-pixel Radius Blur to the mask.
Click OK and then from the Enhance menu choose a Levels adjustment from the Adjust lighting submenu. Move the central Gamma slider underneath the histogram to realign the edge of the mask with the subject edge (no dark or light halo should be visible).
If the mask is too soft the edges can be sharpened by moving the black and white sliders in towards the central Gamma slider a little. Select OK when perfect alignment has been achieved.
Zoom in to 100% Actual pixels whilst working to accurately assess the quality of your mask.
In most instances the hair is already looking pretty fabulous but to modify and perfect the hair even further you will need to inverse the selection (Select > Inverse). Choose ‘Levels’ once again and move the central Gamma slider to the left to increase the density of the hair and eliminate any white halos that may be present. Moving the White slider to the left a little may help the process of achieving a perfect blend between subject and background. Select OK and choose ‘Deselect’ from the Select menu.
Any localized refinement of the mask can be achieved manually by painting with a small soft edged brush directly into the layer mask. Paint with white at a reduced opacity (10-20%) to remove any fine halos present in localized areas. Several brush strokes will slowly erase the halo from the image.
The true test of an accurate mask for a subject that was photographed against a white background is when you place the subject against a very dark background. Grouping a Levels adjustment layer with the new background layer can darken the background image used in this project.
Hold down the Alt key when you select a Levels adjustment layer from the Layers palette. Click on the Group with Previous box in the New Layer dialog box and then select OK to open the Levels dialog box. Move the Gamma slider to the right in order to preview your subject against a darker background in the image window.
Excerpted from “Adobe Photoshop CS One-on-One” by Deke McClelland.
The true power of masking in Adobe® Photoshop® resides in its ability to use an image to select itself. This tutorial shows how to take a couple of color channels from an RGB photograph and combine them to produce a complex, naturalistic mask. And just for fun, we’ll be using this technique to select those wispiest of all image details, individual strands of hair.
1. OPEN A PHOTOGRAPH.
The photo I used is of a high school senior from the PhotoSpin image library.
2. SURVEY THE COLOR CHANNELS.
Go to the Channels palette and click on the individual channel names Red, Green, and Blue. This permits you to peruse the channels and decide which ones are the best candidates for building a mask. The three channels in my image appear slightly colorized below.
You’re looking for the two channels that represent the biggest extremes—that is, extreme contrast between shadows and highlights as well as extreme contrast between each other. In my case, the best candidates appear to be Red and Blue. The Red channel contains the most contrast; the Blue channel has the distinction of being most unlike Red.
3. RETURN TO THE RGB COMPOSITE VIEW.
Now that we’ve decided on our channels, click RGB in the Channels palette to make the full-color image active.
4. CHOOSE THE CALCULATIONS COMMAND.
Choose Image > Calculations to display the Calculations dialog box. This command lets you mix two channels to form a new alpha channel using a blend mode and an Opacity value.
Tip: Turn on the Preview check box, if it’s not turned on already. With Preview on, you can observe the results of your changes in the full-image window.
5. SELECT THE DESIRED SOURCE CHANNELS.
You can think of the Calculations dialog box as layering one channel on top of another. Source 2 is the background channel; Source 1 is the channel in front. This means Source 1 is in a position of emphasis and should therefore contain the channel with the highest contrast. Accordingly:
- Make sure the Source 1 and Source 2 pop-up menus are set to the image you want to mask.
- This is a single-layer document, so both Layer options are automatically Background. No need to change them.
- Set the first Channel option to the channel with the most contrast (in my case, Red). Set the second one to the channel most unlike the first (in my case, Blue).
6. EXPERIMENT WITH INVERT AND BLENDING.
This is the least predictable step in the process because the ideal settings vary radically depending on the composition of your image. Bear in mind, the goal is to select the foreground subject by making it white against a deselected black background. So more than likely, you’ll need to invert the luminosity values in at least one of the channels and maybe both. Blend modes that inherently invert the image, such as Difference and Subtract, are also useful.
The image above shows a few of my experiments (with slight colorization, to better convey gray values):
- In the first image, I turned on the Invert check box for both channels and set the Blending option to Multiply. This generates a light foreground and a dark background, but I’d like to increase the contrast.
- Next, I turned off Invert for the Blue channel and set the Blending option to Difference. This delivers nice black edges, but the highlights remain too dark.
- Finally, I turned off Invert for the Red channel and turned it on for Blue. Then I set Blending to Subtract. This particular blend mode subtracts the luminosity values in the Red channel from those in the inverted Blue channel. It also comes with an Offset value that, when positive, adds brightness across the image. I raised the value to 50, which elevates the luminosity and helps prevent some of the rampant clipping inherent with Subtract.
Incidentally, none of these variations is particularly flattering, and it’s only going to get more gruesome as the exercise progresses. Masks are not pretty things; don’t share them with your clients.
7. ASSIGN THE IDEAL SETTINGS.
In this case, my last experiment comes the closest to a finished mask. My final settings were as follows:
- Turn off the first Invert check box, turn the second one on.
- Change Blending to Subtract.
- Set the three numerical values to 100 percent, 50, and 1 respectively, as shown on the right.
- The Result setting should be New Channel. This tells Photoshop to add an alpha channel to hold your mask.
When you’re done making your own settings, click OK.
8. NAME THE NEW ALPHA CHANNEL.
Double-click the Alpha item in the Channels palette. I like to name my channels after how I created them, so I called mine “R, B Inv, Subtract, Offset 50”, but you can call yours whatever you want.
9. DUPLICATE THE NEW CHANNEL.
Click the last channel in the list and drag it onto the tiny page icon at the bottom of the Channels palette. This duplicates the channel. Double-click the new channel and rename it “First Levels Adjustment.”
Why duplicate the channel? To protect yourself. When working in a single channel, you don’t have access to layers. This means you can’t experiment with different options and merge them together. So the best way to give yourself space to backtrack and make different choices is to duplicate the alpha channel between steps. Then you always have your incremental channels to come back to. An image can contain 56 channels, so you’ve got lots of room to work.
10. INCREASE THE CONTRAST OF THE HAIR.
Choose Image > Adjustments > Levels. Adjust settings to better define the mask. In my case, to heighten the contrast between the woman’s hair and the background, I increased the first value to 80 and reduced the third value to 190.
As shown below, this does a great job of increasing the contrast between the hair and the background. But the transitions between the shoulders and background are weak, ultimately fading into a wishy-washy gray at the bottom of the image.
The obvious question is, why not find a better combination of Levels values? Because there isn’t one. We can accommodate either the hair or the shoulders, but not both. Unless, that is, we call in another channel.
11. AGAIN, DUPLICATE THE FOURTH CHANNEL.
Go back to the channel you created in Steps 4 through 8 (the one I called R, B Inv, Subtract, Offset 50) and drag it onto the icon at the bottom of the Channels palette. Again, Photoshop duplicates the channel. Rename it “Second Levels Adjustment.”
12. INCREASE THE CONTRAST OF THE SHOULDERS.
Press Ctrl+L (Command+L) to display the Levels dialog box. Adjust settings again to better define any weak areas of contrast. In my case, I changed the first value to 170 and the third to 190. This leaves just 20 luminosity values to express the grays, not nearly enough variations to maintain the subtle transitions between strands of hair. But it works well for the area below the shoulders.
13. CREATE THE GRADIENT CHANNEL.
To create the final mask, you need to blend the two channels you’ve created (First Levels Adjustment and Second Levels Adjustment). The best way to do this is to create a new alpha channel with a gradient that marks the point where the two Levels Adjustment channels diverge.
Tip: Use a ruler guide to mark the point at which you want to join your two Levels Adjustment channels. When you create the Gradient channel, you’ll want to line your gradient up with this transition area.
The Gradient channel I created is shown above. To create this gradient, I set the Gradient tool to Color Burn mode and 100% opacity. The black area indicates where the First channel is good; the white area is best expressed in the Second channel. We can blend the two channels using Calculations.
14. CHOOSE THE CALCULATIONS COMMAND.
Choose Image > Calculations to display the Calculations dialog box. Then set the options as follows:
- Set the Channel option for Source 1 to Second Levels Adjustment.
- Set the Channel option for Source 2 to First Levels Adjustment.
- Turn off both Invert check boxes.
- Set Blending to Normal.
- Turn on the Mask check box and then change the final Channel setting to Gradient.
Click the OK button to create the new alpha channel.
15. NAME THE NEW ALPHA CHANNEL.
Double-click the newest Alpha item in the Channels palette to highlight the channel’s name. Then call it “Gradient Mask Combo” to indicate that alpha channels were combined using a gradient mask.
Now all that’s left is to clean up the alpha channel by painting inside the image window. But instead of using the brush tool, we’ll be lightening and darkening pixels with the dodge tool.
16. SELECT THE DODGE TOOL IN THE TOOLBOX.
For convenience’s sake, we’ll use this one tool to do both the dodging and burning.
17. CHANGE THE RANGE SETTING IN THE OPTIONS BAR TO HIGHLIGHTS.
You can do this from the keyboard by pressing Shift+Alt+H (Shift+Option+H on the Mac). This restricts the dodging to only the lightest colors in the mask. Also, increase the Exposure to 50 percent and enlarge the brush diameter to somewhere between 150 and 200 pixels. For the smoothest results, keep the brush soft (Hardness: 0 percent).
18. DRAG OVER THE AREAS THAT SHOULD BE WHITE.
The white areas represent your mask. Chances are, there are some things you want included in the mask that are currently gray. You can paint over these areas with Dodge tool to lighten them and make them part of the masked area.
I used the Dodge tool to paint over the light grays in the shoulders and the outer edge of the hair. (Don’t worry about the central stuff such as the face; we’ll delete that wholesale in a moment.)
Drag as many times as you need to, but be careful not to lighten too much. Used in excess, the dodge tool can expand the selection too far from the natural edges of the hair.
19. CHANGE THE RANGE TO SHADOWS.
You can do this by pressing Shift+Alt+S (or Shift+Option+S). This will restrict the changes to the darkest colors.
20. ALT-DRAG OVER THE AREAS THAT SHOULD BE BLACK.
(If you’re working on a Mac, press the Option key and drag.) Pressing Alt or Option when dragging with the Dodge tool burns the image. This permits us to continue to use the same brush size and Exposure settings that we established in previous steps.
As ever, beware of overdoing it. Overdarkening can choke the selection and result in transitions that are too sharp. You can rarely go wrong by leaving too many gray pixels, especially around the edges of hairs.
21. LASSO THE CENTRAL PORTION OF THE IMAGE.
Now to round up all that extraneous junk in the center of the image. Press the L key to get the lasso tool. Then drag around the interior details.
22. FILL THE SELECTION WITH WHITE.
Press D for the default colors, which are foreground white and background black when working in a mask. Then press Alt+Backspace (Option+Delete on the Mac) to clear the middle of the mask. As shown below, I made the face, neck, dress, and straps go away.
23. SAVE YOUR ALPHA CHANNELS.
Choose File > Save to save the changes made to your image, including all of your new alpha channels.
Continuing with the theme of my last post, I wanted to share three more architectural abstracts. New York City architecture offers limitless possibilities when composing an architectural abstract. Whether you are capturing the reflections of images in a buildings glass windows or seeing lines and angles with the convergence of several buildings, there is always an interesting shot to be had. I know I look like a tourist when I go out with my camera, because I’m always looking up and around at the architecture — knowing no matter how many times I shoot an abstract, there is always another one thats going to excite me more than the last one. I hope you enjoy.