CONSEQUENCES OF TREATING EMPLOYESS AS INDEPENDENT CONTRACTORS

There are numerous reasons employers often prefer to treat certain works as Independent Contractors, rather than employees.  To begin with, there is no obligation to ensure that an Independent Contractor is earning Minimum Wage for the time they spend performing work for the employer.  As a result, there is no need to pay overtime to an Independent Contractor who spends more than 40 hours a week conducting the work they contracted to do.  Similarly, there is no obligation to pay payroll taxes, workers’ compensation insurance, or to withhold the worker’s income tax.  Employers also do not have to abide by the Family Emergency Medical Leave Act, or concern themselves with any statutory obligations to offer health insurance to Independent Contractors.  Simply, it is easier and cheaper to treat workers as Independent Contractors than Employees.

As simple as it may seem in the short term, treating Employees as Independent Contractors can be extremely costly in the long run.  Any employer who routinely utilizes the same workers to perform the same job functions on a daily basis runs the risk of being found in violation of the Fair Labor Standards Act (FLSA) and in violation of State Wage and Hour requirements. 

Investigations by the Wage and Hours board normally start with a complaint from a disgruntled former employee, but if the investigation reveals violations pertaining to that employee, the investigation can be expanded to include all workers for up to 3, 5, or 7 years.  Employers found to have violated the Wage & Hour regulations may suffer fines in addition to having to pay back Unemployment and Workers Compensation payments.  They may also have to pay restitution to employees who are found to have been underpaid.  It is not uncommon for mid-sized companies (15-35 employees) to rack up $75-$100,000 in fines and assessments in Wage & Hour cases.

FLSA cases can be even more costly to employers.  These cases normally start with one or two disgruntled employees, but are often filed as collective cases including “all similarly situated” parties.  As the case matures, more and more Plaintiffs are often added.  If it is determined that the plaintiffs were treated as employees, and not paid minimum wage, the employer may have to pay up to 2 times the amount of wages that should have been paid over several years for each employee (or former employee) included in the suit, plus attorney fees.  These damages frequently add up to hundreds of thousands in damages.

Additionally, since FSLA cases target damages to the workers and Wage & Hour complaints target damages to the State for unpaid taxes and fees, the initiation of one case will often spark the filing of the other.  In the end, the easy, cheaper way to deal with compensating workers can very easily end up destroying your business. 

There are, however, ways to limit some of the risk your business may be at for its past violations of these to statutes and insulate your business from future violations.  These methods include modifying the employment contracts you are currently using and some small alterations in your current operating procedures.  To evaluate your company’s risk and ways to lessen those risks and comply with these statutes you should consult with an attorney familiar with these Employment Law issues.

Entertaiiners and Wait Staff/ Employees not Independent Contractors

The misclassification of employees as independent contractors occurs frequently, regardless of industry, and unfortunately, carries with it significant penalties.   Treating a worker as an independent contractor improperly will not only cost the employer damages for unpaid overtime, but can include damages for unpaid unemployment taxes, workers compensation premiums, payroll taxes, and employee benefits.

Recent federal cases in Texas, D.C., Atlanta, and elsewhere across the country have changed the way workers historically treated as Independent Contractors should be classified under the FLSA (Fair Labor Standards Act), and handing out major penalties to businesses for failing to pay minimum wage and overtime to mis-categorized workers. 

In determining whether workers are employees or independent contractors, the Courts rely on the "economic reality" test, which contains the following factors: (1) the degree of control exercised by the employer over the workers; (2) the workers' opportunity for profit or loss and their investment in the business; (3) the degree of skill and independent initiative required to perform the work; and (4) the permanence or duration of the working relationship; and (5) the extent to which the work is an integral part of the employer's business.

Based on this litmus test, setting schedules and enforcing work place rules shows an exercise of control consistent to that of an employee; the ability to earn tips does not equate to profiting from a capital investment; skill is not seen in the performance of activities to which there is no objective standard; high turnover rates is not the same as the temporary engagement of services; and the more your business needs the worker for the daily operation of the business, the more likely they are an employee.

There are several groups or classes of employees that are particularly prone to mis-classification as independent contractors.  The most prevalent groups that we have dealt with include wait staff and entertainers.  These workers are often compensated either sole by tips or on a job by job basis, and have varying degrees of limitations placed on their ability to work for other employers.

Regardless of how lucrative a bartender or waiter’s tip income may be, they will always be categorized as an employee and entitled to minimum wage and protection under FLSA.  Bartenders and other wait staff are usually required to follow a schedule or shift when working, with breaks regulated by the employer, which equates to an exercise of control over the work of the employee (Category 1 under the Economic Reality test).  These workers’ opportunity for profit is based entirely on the success of the employer; the workers don’t control the advertising, pricing, or costs of goods sold for the provision of the services which their work complements. (Category 2). Pouring drinks or serving plates requires very little skill, and even less entrepreneurial initiative. (Category 3).  Catering and other similar business that use service staff could not operate without those workers, so those workers are considered an integral part of the employer’s business. (Category 5).  A caterer who pays servers $50 plus tips to work an event will violate the FLSA if the $50 pay rate does not equate to minimum wage based on the hours required to work.  Those hours include set up and clean-up time.  The amount actually earned in tips is irrelevant.  The short term or irregularity in the frequency of the employment (Category 4) in this scenario, standing on its own, will probably not be enough to justify treating the worker as an independent contractor.

Don’t Put Off ‘Till Tomorrow, What You May Be Arrested For Today

In addition to counseling and representing clients in Entertainment and Copyright matters, I also frequently represent clients in Criminal matters.  Recently I’ve been getting a lot of questions concerning the “Statute of Limitations” from clients who have learned that there is an old, outstanding warrant for them related to their particular indiscretions of youth.  The question becomes, “Can they still prosecute me for something I’ve done years ago?”

What most people refer to as “The Statute of Limitations” in a criminal case is actually a statute that controls how long the state has to begin a Criminal Proceeding.  That time will vary depending on the seriousness of the case, and whether or not the Defendant has ever been arrested for the allegation.  For Ordinance Violations and Traffic Offenses, the time limit is one year after the alleged offense.  For 2^nd and 1^st Degree Misdemeanors, the time frame is 2 years from the alleged date of offense.  For 3^rd Degree and 2^nd Degree Felonies, the time frame is generally 3 years from the alleged date of offense; and for 1^st Degree Felonies the time frame is generally 4 years.  Felonies classified as Capital Offenses have no time limit.

If a warrant is issued for your arrest, following some sort of investigation, and you have not been arrested for the offense, that warrant must be served on you inside the “Statute of Limitations” regardless of how long after the alleged offense the warrant was issued.  For example, if you are to be charged with Battery, as a 1^st Degree Misdemeanor, and you are not arrested at the time of the offense or during the investigation, the warrant must be served on you inside two years.  There is case law supporting the extension of that time in cases where the Defendant may be actively avoiding service; but in those instances, the State must show that it made a Diligent Search for the Defendant in an effort to serve the warrant.  Simply going to the last known residence once or even twice is not enough. 

If you have never been arrested for the offense, and you were not served with the warrant inside the “Statute of Limitations” your case can probably be dismissed.  To do so, you should contact a Criminal Attorney familiar with these concepts and have him or her fully examine your case and circumstances.

If you are arrested for an offense during the course of the investigation, you are presumed to have been put on notice that you are subject to prosecution.  Therefore, the State is not required to provide you with actual notice of the formal filing of charges in order to initiate the criminal proceeding.  In this instance, to satisfy “The Statute of Limitations”, all the State must do is file formal charges inside the allotted time.  For a 1^st Degree Misdemeanor, that time is 2 years.  

The key to understanding this concept is to remember that law enforcement does not charge defendants, the State Attorney does.  If law enforcement arrests you for an alleged Simple Battery and you go to jail and post bond, or you are issued a Notice to Appear,  you have an obligation to monitor your case.  If after investigation the State Attorney decides to file charges for Aggravated Battery (a 2^nd Degree Felony), they are free to do so, provided that they file those charges inside 3 years of the offense.   Since you were arrested, you are aware of the potential for prosecution, so the State does not have to actually serve the warrant for the proceedings to have been properly initiated…the warrant will be good until it is served, and once served the prosecution can continue. 

Again, in this instance (you were arrested and formal charges filed later, but inside your Statute of Limitations) you should contact and retain a Criminal Attorney familiar with these concepts as there may be other statutory and factual based defenses that you can employ.

In either event, regardless of whether you have been properly noticed of the intent to prosecute, while the warrant goes un-served, the warrant itself is still “good”, and you still have an obligation to respond to the warrant (i.e.: turn yourself in).  Law enforcement will exercise the warrant (arrest you) if they discover a warrant has been issued for your arrest…regardless of how old it is.  Even if it is too late for the State to prosecute you, the warrant for your arrest is still enforceable.  If you coordinate with a Criminal Attorney familiar with these issues, you may be able to control how and when the warrant will be executed.   In some circumstance, your attorney may be able to arrange to have you turn yourself into the Court at the same time that he makes his argument to Dismiss the case, which could leave you never seeing the inside of a jail cell.  Alternatively, if law enforcement exercises the warrant against you, you may spend weeks or months in custody while trying to hire an attorney and scheduling your Motion to Dismiss.

The bottom line is if you discover there is a warrant for your arrest, don’t ignore it…contact an attorney and deal with it.  Otherwise, the warrant won’t go away without your arrest.

Copyright Infringement -- The Cost of File Sharing

It’s one thing to have “a little Captain in you”, but it’s another to be outted as a booty pirate.  Porn companies are cracking down on internet pirating of copyright protected content.  For the past year or two several production companies have been targeting people who use file sharing programs like Bit Torrent to download porn.  The companies have reportedly recovered millions of dollars from over 100,000 individuals who thought they were getting free porn.

Bit Torrent and other file sharing program users make video files available to other members, and are then able to search for other files that they want, that may be available by other members.   Then they can download the file to their own computer.  This sounds like cyber utopia.  After all, didn’t our parents and teachers always emphasis the importance of sharing?  The problem is, that sharing movie and music files is considered Copyright Infringement – it can lead to massive law suits and even criminal liability.  The movie and music industry considers it a major cause for falling revenues from record and dvd sales – and they are not happy. 

Unlike file sharing technology of old, the new technology does not transfer an entire file from one computer to another.  Instead, it takes pieces of the target file from several computers (some times thousands), called a swarm, and then reassembles the file on your computer.  This helps protect the providers of the software from copyright infringement suits, but it creates a situation where every individual who provides a piece of the file may be liable for distributing copyright protected material.  Porn production companies have found a way to identify all of the IP addresses that make up a swarm during a down load, and are proceeding to file copyright infringement suits against everyone in the swarm.  How would you like to be publicly named in a lawsuit for illegally copying “Chucky Teen Butt Fuckers 69” (hopefully a made up name)?

Once the IP addresses making up a swarm are identified, the production companies then get a subpoena forcing the Internet Service Provider to supply the names and addresses of the IP addresses.  Recently, this is where the courts have been giving some resistance to these suits.  Since a swarm may be made up of thousands of IP addresses, the law suits are typically filed as “Porn Productions v. John Does 1-3,000”, and the production company then seeks subpoenas for all 3000 IP addresses.  The Federal Courts many of these cases have been filed in have recently been resistant to issuing subpoenas for 3000 people at a time, when it is quite possible that many of the John Does may not even reside in the geographical jurisdiction of that court.  Supporters of the technology are hailing these recent developments as a triumph against the law suits, but they fail to realize that these rulings will end up cost the pirates more in legal fees and damages in the long run.

When the Courts allow the suits to include an entire swarm, the producers are able to identify all the members of the swarm with inside one case, with one motion.  They then contact each defendant and give them the opportunity to settle the case quickly and quietly (normally $1-2,000 each).   Copyright Infringement often allows statutory damages of up to $150,000 for each file you copy or allow someone to copy.  “Statutory Damages” allow the plaintiff to collect the money without proving the value of the file you stole, and without proving how much the theft hurt them…they just have to prove that you copied the file or allowed someone else to copy the file.  If production companies have to file multiple suits to go after a single swarm, it will cost them more.  If it costs more to prosecute the case, they will want larger settlements.   

Those $1000 settlements can easily turn into five and ten thousand dollar settlements, and the cases will still settled.   Being named as a defendant in these suits can be embarrassing…do you want the local newspaper to know what porn gets you off?  Fighting these cases normally requires surrendering your computer to be examined for other infringing files – do you want the courts seeing your entire porn collection?  That barn yard scene you just had to see will probably end up in criminal charges….(and just hope you don’t have any vintage Tracy Lords flicks).   And don’t forget the attorney fees!  Negotiating a $1000 to $2000 settlement can often cost a couple thousand dollars in your own attorney fees.  To try to fight one of these cases will easily run into the $10,000 dollar range.   The porn industry is not going to just keep bending over and taking it from copyright pirates.  The suits will continue…the issue becomes how much each infringer will pay when caught.

These mass suits have come under fire because they offer settlements so easily, offering to drop the prosecution for as little as a thousand dollars.  The criticism is that settling for such small amounts does not really discourage future piracy…it just generates money.  With 3000 people in a swarm, if a third settle for $1000, the production recovers $1,000,000, regardless of the quality of the production.  In contrast, the music industry filed fewer suits, but went after large Court ordered judgments.  Remember the college student who lost an infringement suit to the tune of $365,000?  That sent a message.  Do the supporters of the technology really want thousands of six figure judgments and the mass publicity to that goes with those types of suits?  To the average person, I think $1,000 per file leaves enough of an impression on copyright infringers.

The point is…sharing files is copyright infringement.  Porn companies are going after on line pirates.  If you insist on getting your porn for free, you are likely to pay in the end.

Florida DUI Basics

Probably one of the most common, and most complicated criminal charges to defend against is a DUI. Most people don't know what they are in for if they are ever charged with a DUI in Florida. Below is virtually the exact speech I give to new clients charged with DUI so they can begin to understand the process they are about to undertake:

In Florida, a DUI is actually two cases occurring at once. The first is the Criminal Case that most of us think of, involving the State Attorney and a judge at the court house. The second often gets ignored, and is against the Department of Motor Vehicles. This second case comes out of the fact that as soon as someone is charged with DUI, the DMV suspends their license. That suspension initiates an Administrative Law Case that has penalties and consequences above and beyond any potential criminal penalties. It is my strong opinion that failing to take advantage of the Administrative Hearing is a huge mistake in any DUI case.

As I stated above, if you are ever charged with a DUI, the DMV automatically suspends your license for 6 months to a year. If you consented to the breathalyzer, the suspension is for six months; if you refused the breathalyzer, the suspension is for a year. Once you are arrested or cited for DUI, your license is confiscated and you have ten (10) days to request an Administrative Hearing to challenge this suspension. During that ten day period, your DUI citation actually serves your driver's license. If you do not request the Administrative hearing during those ten days, the suspension will take effect, and there will be nothing you can do to reverse it. Yes, your license is suspended even though your Criminal case hasn't even started.

If you do request an Administrative Hearing, you will normally qualify for a Business Purpose Driving Permit, which is intended to allow you to keep driving until after the Administrative Hearing. In order to uphold the suspension, the Department only has to establish Probable Cause to believe that either you were in control of a motor vehicle while under the influence of an intoxicant, or that you refused to take a breathalyzer test after being properly requested to do so. Probable Cause is a very low threshold, nowhere near "beyond a reasonable doubt". The hearing is presided over by a Hearing Officer...Not a Judge, Possibly not even an attorney. The Hearing Officer's job is to determine whether or not law enforcement had a good reason to believe you were under the influence...not a rock solid reason, just a good one. Additionally, the rules of evidence are much more relaxed than in the Criminal part of the case. For instance, in parts of Florida (including Tampa, Sarasota and Naples), an illegal stop probably won't get you a win at the Administrative Hearing. I'm going to be honest with you, and say that no attorneys brag about their win rates at these hearing. It is a very low threshold of proof. However, there are number very good reasons to go through the process.

First of all, requesting the hearing will probably get you a permit to allow you to keep driving. This will give you time to make arrangements for the possibility that you may have to go a period of time without being able to drive. If you do win the hearing, your driving privileges will be reinstated. If, however, the suspension is upheld (or if you don't request the hearing at all), you will have to sign up for DUI School and go a period of time before another Hardship License will be issued (30 days if you took the breathalyzer, and 90 days if you refused). If you had a previous DUI, ever, you probably will not be issued a hardship license if you do not win the Administrative Hearing, or if you don't request one. Changes are, you weren't planning on loosing your license the night you got arrested, and will need more than 10 days to figure out how you are going to get to work, shcool, or to pick up the kids for the next month to a year. Requesting the Administrative Hearing usually gets you a driving permit and gives you time to prepare for the possibility that you will not be able to drive for a while. THE LAST THING YOU EVER WANT IS TO BE CHARGED WITH DRIVING ON A DUI SUSPENDED LICENSE; that is a good way to get a reservation at the Sheriff's County Resort (jail).

Second, you are entitled to much of the same Discovery (police reports, etc.) in the Administrative Case as you are in the Criminal case. The Administrative Hearing almost always occurs much faster than the Criminal Case will progress. Therefore, you can often get the basic Discovery quicker by going through the Administrative Hearing. It's the same reports you are going to get in the Criminal Case, but a head start is rarely a bad thing. In preparing for your Administrative Hearing, your attorney will be developing some of the same defenses he or she hopes to use to defend the criminal charges.

Most importantly, you or your attorney get a chance to question the officers involved in the Criminal Case on the record, and usually without the State Attorney present. Law enforcement is trained on how to write a police report to establish probable cause. Usually, that is all the information in a police report...the bare facts that make the arrest sound as solid as possible. In more egregious criminal cases attorney get to depose officers to find out if anything is missing from the report. In Misdemeanor and Traffic cases in Florida, you do not have an absolute right to take deposition; in fact, you need the judge's permission in most cases. If you request and Administrative Hearing, you can subpoena the officers involved and ask them questions about the DUI investigation. This is usually where attorneys establish the basis to challenge the traffic stop and other evidence allegedly collected by the police officer. The State Attorney is notified of the hearing, but I have never seen on show up. So, the officer is under oath, on the record, and isn't being protected by a prosecuting attorney. This often leads to some very interesting testimony. Now, remember, this Administrative Hearing operates under different rules and with a lower burden of proof than the Criminal Case will. So you can still find numerous improprieties and imperfections with the investigation that may be able to be used to defeat the Criminal Case, but still lose the Administrative Hearing and have your license suspended. At the end of the day, all that needs to be established at the Administrative Hearing is Probable Cause...a good reason to believe.

If any of the officers you subpoena fail to appear at the hearing, or give a good reason for their absence, the suspension will be invalidated, you win, and your license is reinstated. However, that isn’t always the best result. If officers don’t appear, you don’t get a chance to question them under oath before Trial unless you get permission from the judge in the Criminal Case. They may prevent you from being able to properly develop any defenses you may have in the Criminal Case…you are just stuck with his report.

Once the Administrative Hearing is over, the Hearing Officer will usually reserve his/her ruling, and come out with a written decision within 10 business days. If the suspension is upheld your license will be suspended. If the initial permit you were issued pending the hearing still has time on it, the permit will remain in effect, but you will have to qualify for a Hardship License to get a new driving permit. If the suspension is invalided, you win and get your license back, pending the outcome of the criminal case.

Next, the focus normally turns to your Criminal Case. Regardless of whether you went through the Administrative Process, your attorney will most likely demand all of the Discovery from the State Attorney. You are entitled to all of the police reports written by any officer participating in your investigation and any audio or video recordings taken during the investigation. Your attorney will examine all of the evidence to ensure that it actually exists, to see if it supports the narratives in the police reports, and to ensure that all of the proper procedures were followed throughout the investigation. It is his job to exploit any anomalies in the investigation, the evidence, or the manner the evidence was collected or generated for the purpose of dismantling the case against you as much as he can.

Once the Discovery phase is complete, possibly prior to its completion, your attorney will begin negotiating to find the best possible plea option as an alternative to going to Trial. The fact that your attorney investigates plea options does not mean you shouldn't go to Trial. Trial is relatively final and comes with the possibility of jail if convicted. Your attorney has an obligation to present you with all of your options. Once he does that it is your choice and your choice alone, as to whether you go to Trial or accept a plea bargain. Many people may choose a plea bargain because they are afraid of a Trial, don't want to pay additional attorney fees normally charged for a Trial, or because they are exhausted by this entire ordeal and simply want it done and over.

In Florida, the DUI statute has minimum mandatory sanctions for anyone who pleas to a DUI, or is found guilty at Trial. For a first time DUI conviction, the statute requires conviction (so you can never have your record sealed or expunged), a 6-12 month suspension of you license (in addition to the Administrative suspension discussed earlier), DUI School, Substance Abuse Counseling, Probation, Impoundment of your car, $500 in minimum fines, 50 hours of Community Service, and participation in a Victim Impact Panel. High blood alcohol levels require hire fines and additional penalties; a second conviction in 5 years requires minimum jail time and a 5 year driver's license suspension; a third conviction in 10 years is a Felony and comes with a 10 license suspension; and a fourth conviction or more, ever, is a Felony and requires a life time revocation of your driver's license. If you enter a plea to a DUI charge, above is the LEAST punishment any judge is allowed to give. Even if you are convicted after a Trial and sent to jail, the judge has to impose the sanctions listed above.

However, if your attorney can find the right defense to your charges, he may be able to get the case dismissed before Trial, or possibly reduced to Reckless Driving or some other lesser charge to avoid a Trial. Under the statute, even if the case is reduced to Reckless Driving, where an intoxicant played a contributing factor, you may still have to take DUI School and Substance abuse counseling. However, if you can get the charge reduced, the penalties become negotiable as there are virtually no minimum statutory sanctions.

So yes, DUI’s are common, but proper defense of them is complicated. If you are ever charged with this offense, select your attorney carefully. There are many specific defenses that I didn’t discuss here, as they tend to be case specific and change from jurisdiction to jurisdiction, but in my opinion, the best chance you have of successfully defeating a DUI charge is by defending BOTH cases…the DUI and the Administrative Suspension.

Models' Right to Publicity

One of the most common question I get from models is: “I just found out someone is using photos of me without my permission…How can I make them stop?” The answer depends on how the photos are being used.

You have the right to control what products or services your image or persona is used to promote. This right is commonly referred to as your “right to publicity.” If your name, image, likeness and other unequivocal aspects of your personality is used to promote a product or service without your consent, you may have a cause of action under Florida law for invasion of privacy. The "right of publicity" is intended to assure an individual the right to own, protect, and commercially exploit his or her name, likeness, or persona. Florida generally categorizes the right as a personal right as part of your Right to Privacy and refers to the infringement of the right as the “Misappropriation of Identity”.

The Florida Statutes on the Right to Publicity haven’t changed much since they were first enacted over 60 years ago. Florida law prohibits the publication of an individual's name, photograph, or likeness for any commercial purpose without the individual's express written or oral consent. A person whose likeness is used without consent may bring an action to enjoin the unauthorized use and to recover damages for loss or injury sustained by the publication, including a reasonable royalty, and punitive damages. In some circumstance, if it can be shown that the misappropriation was egregious and done with malice, the statute allows for triple damages and attorney fees.

The law contains three specified exceptions. The first is the Public Interest exception. This exempts news paper, magazine, news broadcasts, some literary uses, and other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes." So, no photo release is needed to include a picture of you where that picture becomes part of a news article. This concept is similar to the Copyright exception for “fair use”. This is also the exception that allows for the entire concept of paparazzi. The courts have ruled that Public Figures are entitled to less protection of the right to privacy due to the fact that their notoriety may create a genuine public interest in their activities.

Second, the law does not apply "in connection with the resale or other distribution of literary, musical or artistic productions or other articles of merchandise or property" when the person has consented to the initial use. This exception make sense when you consider situations where it may be applied. If a model agrees to be on a cd cover, I buy the cd and later pawn it, the pawn store doesn’t need a new release from to model to advertise the cd for sale in the original cd cover…common sense.

Finally, the statute does not apply to photographs of a person "solely as a member of the public" when the person is not named or otherwise identified with the use of such photograph. Photographing the general public without their consent is not seen as an invasion of privacy, as the Court has determined that you have not have an expectation of privacy when out in public. Therefore, pictures of you dancing at a night club, posted on the club’s website does not violate your right to publicity. However, if the picture includes a caption with your name, for instance, “Wendy Jones partying with our staff”, the use of your image is not covered by the exception because it identifies you and insinuates that you endorse the night club and/or its staff. Both the identification and the insinuated endorsement violates the exception.

Florida's statutory "right of publicity" is intended to assure an individual the right to own, protect, and commercially exploit his or her name and likeness, but in order to recover damages for the violation of this right, your image or persona must have been used to promote the products or services of another without your consent. This is referred to as the Direct Promotion Requirement.

However, quite often, the issue at hand is that a model has sat for photos with a photographer, perhaps posted those photos on the web to promote the photographer or the model herself, and someone “stole” the pictures and are now displaying them on their own website. As long as the photos are not being displayed in a manner that suggests that the model endorses the products or services of the offending website, there is probably no theft of publicity. The photographer, however, may have a Copyright infringement claim if he or she did not authorize the offending sight to copy his pictures. As a model, you have some control over how the photos are used, but the photographer is usually the holder of the Copyright for the photos he created, and therefore, he has control over IF the photos are use. If the photos are used without the photographer’s consent, he may have a Copyright claim regardless of whether the photos are used in a way that insinuates your endorsement of a product or service.

So, the answer to the question at hand is: If images of you are being used, without your permission, to endorse the product or services of another, your Right to Publicity has be infringed upon, and you may be able to recover damages and get injunctive relief; but if the use of your images does not imply your endorsement of specific goods or services, there will normally be no recourse for a model.

Copyright Basics

One of the most frequent questions I get from new artists is:  "What are my Copyrights, and how do I protect them?" 

Copyrights are the bundle of rights an artist, writer, performer, photographer, etc. has in the work that he or she has created.  They include the right to reproduce, publish, distribute and modify their artistic or literary creations.  The most important method of protecting artistic, literary creations or computer technology is through the law of Copyrights. Copyright protection in this country dates back almost 200 years, and was seen as important enough to be written into the US Constitution. Our founding fathers established a system of protection for authors and inventors where creators of intellectual works were granted exclusive rights in their writings and discoveries for limited periods of time. The present Copyright Act was redrafted and refined in 1976, and expanded in 1980 to clearly extending Copyright protection to computer programs.

Under the law the author of a computer program, painting, screenplay, novel, story, song, photo, movie and many other protected media, has the exclusive right to reproduce and distribute their creation and any derivative versions. They also have the exclusive right to authorize others to do so during the term of the Copyright. Under the current Copyright Law, that protection begins the moment a work is completed, and lasts the entire lifetime of the author, plus 70 years for individuals, and 95 years for corporations and other works for hire. [Note: From 1976 to 1998 the term was life plus 50 years for individuals and 75 years for corporations and works for hire.]  Thus, the author of a Copyrighted work has the right to restrict all persons from copying the work without consent and to take strong legal action against anyone who infringes on the Copyright.

There are three basic exceptions to these protections which can be invoked under limited circumstances. The first exception is essentially a technical point applying specifically to computer programs. It is not considered an infringement if a copy of a computer program is created as an essential step in its utilization by the computer. In other words, if, as the program runs, a duplicate or partial copy is created or transformed "inside" the computer in order to allow the program to operate properly, there is no infringement of the author's Copyright.

The second exception is more practical and also easiestly applied to computer programs. A user may make a copy of the work for archival (backup) purposes. It is easy to see how this exception applies to computer programs, but it can also be applied to other protected material if the purpose of the copy is solely for the purpose of preservation or security. However, the copy must be destroyed if the user sells or otherwise ceases to have a lawful right to possess it; i.e.: the license granting the use of the material expires.

The third exception is called the doctrine of "fair use." Under certain conditions, a user may have a limited right to duplicate all or part of a Copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research. In determining whether a particular use is a "fair use", a number of factors are considered, including the purpose of the use, (whether it is for commercial or nonprofit educational purposes); the nature of the work; how much of the work is used and how substantial that portion is in relation to the entire program; and the effect of the use upon the potential market or value of the work. For instance, a public school can’t copy text books and claim “fair use” just because the school is nonprofit with an educational purpose; but a critic can publish an exert of the same text book to criticize the work even if the critic is paid for his critique and his article is published in a for profit periodical.

The work does not need to be registered to have the protection of the Copyright Law; the rights to exclusive ownership and control inure to the creator as soon as his “pen leaves the paper". However, before a Copyright can be enforced in court, the owner must register the Copyrighted material with the United States Copyright Office in Washington, D.C. The original and all copies of a work should be marked with a Copyright notice - the word "Copyright" the abbreviation "Copr.", or the symbol ©, the date and the author's name. The idea is to put a potential user of the material on notice that the material has been registered, and the author intends to enforce his rights in the material.

The Copyright is registered by completing an application and depositing a copy of the work with the Copyright Office. For computer programs, if a program is more than fifty pages, only the first 25 and last 25 pages are required. For programs that contain trade secrets, the author may omit a portion of the code in accordance with Copyright Office regulations.

Registration gives the Copyright owner the right to sue in Federal Court to stop infringers and to recover damages caused by the infringement. In a case of Copyright infringement, the Court can issue an injunction prohibiting further use of the material, order the seizure and destruction of infringing items and the means to make them, and award damages to the Copyright owner based either on the author's lost profits or the infringer's ill-gotten gains. If registration has been made prior to the infringement (or within three months after first publication of the work), the owner may ask the Court to award statutory damages ranging from $500 to $20,000 for each work infringed, plus attorney's fees. If the author is able to establish willful infringement, statutory damages can rise to $100,000 for each work infringed, and under some circumstances, criminal penalties can be imposed.

Stated another way, if your work is copied and used before you register your Copyrights, in court you can sue for an injunction plus either your lost profits due to the infringement, or the profits made as a result of stealing your work. However, if you register your Copyrights before someone copies your work, you could be awarded up to $20,000 per work infringed upon without having to show that you lost one red cent, or that the infringer made a nickel, plus have the infringer reimburse your legal fees; and if you can show someone knew they were stealing your protected work, you could get up to $100,000 for the infringement, plus attorney fees. Considering the minimal cost of registering the work, it is normally well worth the investment.