Posted by Sandi Winton on February 15, 2008 at 9:57 AM
I take numerous pix of barns, windmills and horses. Do I need to get a property release from someone if I pull over to the side of the road and take a pix of their barn, windmill or horse? I'm pretty sure that if I go on their property to take the pix then I should get a release, but if I'm not on the property do I have to get one? The pictures will be for sale at shows, website etc... and either loose prints, or framed and matted.
Thanks for your help!
Sandi Winton
Redbud Photography
www.redbudphotography.com
Posted by David Prichard on February 15, 2008 at 12:49 PM
Sandi,
For commercial purposes you need a property release of any building regardless of whether you were on the property or not when taking the photograph.
Dave
Posted by Cynthia Spence on February 15, 2008 at 2:54 PM
Someone correct me if I'm wrong...but what I've heard is that you need releases when it's being used for advertising, so if someone bought a photo to use for an adverstisement then it's a good idea. Otherwise, it never hurts. Maybe someone could give some advice if they have experience on how they go about getting one...ever have problems with people being apprehensive to give it? Use the address and send it in the mail? Drive up and knock on thier door?
Posted by David Prichard on February 15, 2008 at 5:32 PM
Cynthia,
My experience is Canadian rather than American and there is some difference in the laws, particularly as Americans are a bit more litigious than we are in Canada. I know my stock agency in Canada has become much more stringent about model and property releases since forming an alliance with an American stock firm.
It is my understanding that any commercial use requires a property release. That being said I've had work on postcards and calendars that was not released and nobody said a thing. One would most likely need a lawyer to define yah or nay. From an economic point of view a model release broadens the market you can sell to.
Property releases are not transferable. If somebody sells their property and doesn't inform the new owner of the release, you no longer have a property release.
Carolyn Wright, www.PhotoAttorney.com, is an excellent resource. She is a nature photographer and an attorney. I recommend asking her about whether a property release is necessary.
Someone correct me if I'm wrong...but what I've heard is that you need releases when it's being used for advertising, so if someone bought a photo to use for an adverstisement then it's a good idea.
You know, I've heard this before, and I always figured that it was because people got confused over the definition of the word "commercial". In the US, "commercial" can mean (among other things) both "advertisement" and "to be used for sales". The second definition would mean that anything being sold is a "commercial" good, so release would always be needed in order to sell an image of someone else's property/goods/etc. (This is what I would expect is correct.)
I always wondered if people were using the first definition when they said that releases were only needed for advertising, but I really have no idea.
Posted by Patrick Nixon on April 19, 2008 at 11:41 PM
Everything legal article I have read says that NO RELEASE is required unless a (1) privacy right, (2) trademark or (3) copyright is involved. Also anyone who sues must be able to show that he is being harmed or that a statutory prohibition is being violated.
It's my understanding that privacy rights are PERSONAL and do not attach to buildings. To win a lawsuit regarding trademark infringement, a plaintiff would need to show that his buidling was previously registered (federally) and used as a trademark, not merely that it could be so, AND that you are using the photo of his building in a commercially harmful or unpermitted (e.g. an implied endorsement) manner. To win a copyright lawsuit, the plaintiff has to show that he created the image first.
For example, one could take a photograph of the New York Stock Exchange (by itself or part of a larger image of New York citscape) or a photograph of a railroad locomotive depicting a trademark and use it -- perhaps even sell it -- without violating trademark law as long as the photograph is not being used in a way that creates an implied endorsement or is otherwuse (e.g. reputationally) harmful. Courts are increasing recognizing "artistic or academic exceptions" for photographs just as they allow brief citations from written works for academic purposes.
In addition, anyone who sues must be able to show that he is actually being harmed (in federal court to the amount of $10,000), not just that he doesn't like what is being done with the photo. Courts don't view lawsuits over nothing or the picayune, or just to extract royalties, favorably.
There is a lot of misunderstanding about this issue, caused mostly by failure to understand the difference between what is actually NEEDED AT LAW and what might be WISE. It is altogether too easy to become sued; the real question is whether the other party can win -- and withstand a countersuit by you for costs generated if his lawsuit is frivolous. So, a release for a photo of a person or building might be WISE to prevent a lawsuit, but might not actually be NECESSARY.
I would always seek a release for a photo of a person, rarely if ever for a photo of a building. I am not a lawyer, but have looked into this issue a little deeper. I'm not giving legal advice but "personal opinion about the law" based on what I have read elsewhere. If you are really worried, you should obtain an opinion from a lawyer.
Posted by Patrick Nixon on April 20, 2008 at 1:11 AM
Buildings created after Dec 1, 1990 are protected by copyright but the copyright law contains an explicit "photographer's exception" that allows anyone to take a photograph of a private or public (except for designated military installations and nuclear facilities) building from any publicly accessible area. The exception does not apply to works of art such as monuments, statues, and paiintings.
There is a difference between the right to take a photograph and the right to use it commercially afterward. That is where commercial law, such as trademark law, applies. But even in this instance your commercial use may be "fair" or harmless.
Posted by Sandi Winton on April 20, 2008 at 9:29 AM
Thanks Patrick. The word commercially confuses me. I have a picture of a couple of barns that I have taken on the front of my business card. Is that considered 'commercial'?
Sandi
Posted by Patrick Nixon on April 20, 2008 at 11:53 AM
In my non-lawyer but photographer opinion, I suppose a business card containing a photograph could be considered advertising, which seems to be a form of commercial activity. Likewise, sale of a photograph, even privately or at art/craft shows, seems to be a form of commercial activity (just ask a tax man).
But again, I read that (1) privacy rights are PERSONAL and do not attach to buildings, (2) only buildings created after Dec 1, 1990 enjoy copyright protection and even then it seems that it is the architectural design that is being protected not the mere appearance of the building, and (3) unless you are creating some kind of implied endorsement or damaging reputation, trademark law would not seem to apply. And whatever law, if any, applies any plaintiff is going to have to show that he is being substantially harmed.
Again, if you are really worried about this you should seek a legal opinion from a lawyer. And consider whether your objective is to prevent ANY lawsuit, even an unjustified one, or whether you are content to rely upon a legal defense.
Discussion
9 repliesThanks for your help!
Sandi Winton
Redbud Photography
www.redbudphotography.com
For commercial purposes you need a property release of any building regardless of whether you were on the property or not when taking the photograph.
Dave
My experience is Canadian rather than American and there is some difference in the laws, particularly as Americans are a bit more litigious than we are in Canada. I know my stock agency in Canada has become much more stringent about model and property releases since forming an alliance with an American stock firm.
It is my understanding that any commercial use requires a property release. That being said I've had work on postcards and calendars that was not released and nobody said a thing. One would most likely need a lawyer to define yah or nay. From an economic point of view a model release broadens the market you can sell to.
Property releases are not transferable. If somebody sells their property and doesn't inform the new owner of the release, you no longer have a property release.
Dave
You know, I've heard this before, and I always figured that it was because people got confused over the definition of the word "commercial". In the US, "commercial" can mean (among other things) both "advertisement" and "to be used for sales". The second definition would mean that anything being sold is a "commercial" good, so release would always be needed in order to sell an image of someone else's property/goods/etc. (This is what I would expect is correct.)
I always wondered if people were using the first definition when they said that releases were only needed for advertising, but I really have no idea.
It's my understanding that privacy rights are PERSONAL and do not attach to buildings. To win a lawsuit regarding trademark infringement, a plaintiff would need to show that his buidling was previously registered (federally) and used as a trademark, not merely that it could be so, AND that you are using the photo of his building in a commercially harmful or unpermitted (e.g. an implied endorsement) manner. To win a copyright lawsuit, the plaintiff has to show that he created the image first.
For example, one could take a photograph of the New York Stock Exchange (by itself or part of a larger image of New York citscape) or a photograph of a railroad locomotive depicting a trademark and use it -- perhaps even sell it -- without violating trademark law as long as the photograph is not being used in a way that creates an implied endorsement or is otherwuse (e.g. reputationally) harmful. Courts are increasing recognizing "artistic or academic exceptions" for photographs just as they allow brief citations from written works for academic purposes.
In addition, anyone who sues must be able to show that he is actually being harmed (in federal court to the amount of $10,000), not just that he doesn't like what is being done with the photo. Courts don't view lawsuits over nothing or the picayune, or just to extract royalties, favorably.
There is a lot of misunderstanding about this issue, caused mostly by failure to understand the difference between what is actually NEEDED AT LAW and what might be WISE. It is altogether too easy to become sued; the real question is whether the other party can win -- and withstand a countersuit by you for costs generated if his lawsuit is frivolous. So, a release for a photo of a person or building might be WISE to prevent a lawsuit, but might not actually be NECESSARY.
I would always seek a release for a photo of a person, rarely if ever for a photo of a building. I am not a lawyer, but have looked into this issue a little deeper. I'm not giving legal advice but "personal opinion about the law" based on what I have read elsewhere. If you are really worried, you should obtain an opinion from a lawyer.
There is a difference between the right to take a photograph and the right to use it commercially afterward. That is where commercial law, such as trademark law, applies. But even in this instance your commercial use may be "fair" or harmless.
Sandi
But again, I read that (1) privacy rights are PERSONAL and do not attach to buildings, (2) only buildings created after Dec 1, 1990 enjoy copyright protection and even then it seems that it is the architectural design that is being protected not the mere appearance of the building, and (3) unless you are creating some kind of implied endorsement or damaging reputation, trademark law would not seem to apply. And whatever law, if any, applies any plaintiff is going to have to show that he is being substantially harmed.
Again, if you are really worried about this you should seek a legal opinion from a lawyer. And consider whether your objective is to prevent ANY lawsuit, even an unjustified one, or whether you are content to rely upon a legal defense.