I am slowly trying to reorganize my amateur photography passion into a more serious activity. As a part of this process I am building my portfolio web site adding images one by one, redoing them, perfecting and retouching.
Doing this I came across an image that I am not sure if I can put on my site and advertise for printing. The problem is that that image has a private house in it. I don't know whose house it is, somewhere by Smith Rock Park, somewhere in the depth of Oregon.
Can I put the image on my site and advertise it? Am I violating any rights? Is there a common sense into it, like: "do it anyway - who cares?"?
This is the link to the image: http://www.pbase.com/pulkownik_swiatlo/image/76306793
Hi Cezar, I am thinking that you will need to get a signed release form from the owner of the house prior to selling images of his house. Particularly since it is such a prominent and readily recognizable feature in the image.
Two books that can be of assistance are:
Business and Legal Forms for Photographers by Tad Crawford
Best Business Practices for Photographers by John Harrington
"A property release says that the owner of a certain property, such as a pet or a building, has given you consent to take and use images of the property. You don’t need one for public property, such as government buildings (although you may run into problems just from photographing them, for security reasons). But for images of private property — and particularly of objects that are closely identified with specific people — you are safer if you get a release."
Stefan, I am pretty sure it's Mount Hood, unless I am completely confused. Jefferson was much farther away and smaller..
Posted by Paul DeCesare on April 10, 2008 at 9:20 PM
Definitely Hood. And definitely detailed enough to need a release signed.
Posted by Mark Hudon on April 10, 2008 at 10:05 PM
Absolutely NOT Mt Hood. This is Jefferson, Hood is way way to the right (north). The Monkey at Smith, is directly behind you when you took this photo. You have to be on TOP of the Monkey to see Hood from anywhere near here.
When you are on public property you can shoot ANYTHING you can see. You can't SELL shots of private residences or people who have a reasonable expectation of privacy though. You can print it and hang it on your wall. I'll bet you can even give it away. If the house were burning down or if it was being raided by the police, then it's a news event and you can sell it to a newspaper for editorial use. You couldn't sell it to a fire alarm company to use in their ads.
Posted by Cezar Mart on April 10, 2008 at 10:38 PM
Thank you guys for the help. It looks that I will have to forget about this picture in my portfolio.
As to if it's Hood or Jefferson, I was sure for the whole time and at the time of the shot that it was Mt Hood. I am willing to bet money on it. It was taken from the Torture Trail, or whatever it was called. I mean the trail by the Monkey Head to - oh now I remember - the top of the Misery Ridge. Yes, the MISERY Ridge.
I know Mt Hood and I know Jefferson, and it was clearly Mt Hood. From the trail to the top of Misery Ridge. Unless I was so exhausted having to carry the whole equipment including the heavy tripod, that my senses got messed up.
Now I am confused by the confidence in Mark's voice, so the only solution to this is to go over there again. Oh bother!
Posted by Mark Hudon on April 10, 2008 at 10:42 PM
ya wanna bet? I'll give you a hundred bucks if this is Hood.
Posted by Rick Lundh on April 10, 2008 at 11:15 PM
I'll bet $1,000 that it's Jefferson...and NOT Hood.
Cezar, you don't have to go back there, it is Mt. Jefferson. You can't see Hood from Smith Rocks SP area, except it is an absolutely clear day and you are in the right spot.
If you look west, you see the 3 Sisters, if you look north there is Jefferson, and eventually Hood far on the horizon a little bit to the right of Jefferson.
Posted by Tom Kloster on April 11, 2008 at 12:29 AM
Most definitely Jefferson!
Posted by Cezar Mart on April 11, 2008 at 12:43 AM
OK, I am outvoted . I will change the caption on that picture to Mt. Jefferson.
MOUNT JEFFERSON...
Or why does it matter? It could be Annapurna, my life situation would not change even a bit...
Thanks guys :)
Cezar
Posted by Rick Lundh on April 11, 2008 at 12:55 AM
Cezar, it matters to me because I am not right very often. I have to mark this one on the calendar .
Actually, it will only matter when someone buys it BECAUSE it is Mt Hood. After they find out it wasn't...there would be some red faces .
Wowsers folks!! At least we WERE able to help Cezar with the selling or not selling of said image of whatever mountain somewhere in the state of Oregon!!
property and most buildings are not copyrightable. if you are self publishing you have every right to sell the image directly to the public. art is art and will always be salable as art without question.
putting it on your site is publicizing and not publishing it. again it's your art, you can publicize however you like.
the only time you may have trouble is if you can see something happening on the property which could be construed as defamation, slander or libel (such as if you could see the meth lab through the window)
i can walk around all day in portland and take and sell photos of houses and buildings, this is not any different and it's absurd to think that any court would take the side of the property owner.
you even have every right to sell it for advertising as it's the publisher's responsibility to be in possession of the proper documentation (your responsibility to collect the paperwork). however you must 'advise' them before hand that you cannot 'advise' them as to their rights or responsibilities of publishing the image and tell them (in writing) that it's their responsibility. i would not do this however.
Too funny! You guys, thanks for a hearty laugh this a.m. LOL.
Mark hit the nail on the head for translating all the stuff about needing a release or not into common sense. And it's definitely not a good idea to, "do it anyway- who cares," unless you are eager to risk an expensive trip to court in a lawsuit. Too bad, 'cause it's a nice photo. Perhaps the homeowner would sign a release in exchange for a nice print of it? All the best in growing the hobby into a business.
Posted by Greg Vaughn on April 11, 2008 at 12:20 PM
"...I am not sure if I can put on my site and advertise for printing."
Without a release, you can put it on your website as an example of your work and you can sell reproduction rights for _editorial_ use to magazines, books and other websites. You cannot, however, sell rights for _commercial_ use such as advertising, without a release.
Without a release, you could not sell prints for something like display in a real estate office (commercial/advertising use), but you can sell prints to individuals for personal display.
Cezar if this were my image and I REALLY felt it was a valuable part of my portfolio I would definitely get a property release from the owner of the cabin. That would clear the air and make it all right and proper AND avoid a possibly expensive legal mess somewhere down the road.
if you are selling this as art, you DO NOT need a release to sell your art, no one does. i can sell art photography of anyone and their children all day without a release, just like PJ's and paparazzi can.
expensive and lengthy legal battles ? NO WAY will it make it any farther a few letters exchanged between photographer and home owner. the simple answer to people not wanting their property on the web is usually 'well i shot it because it looked cool and if you want me to remove it, i can, but then no one will be able to see this cool shot of your place, then we both lose if that's what you want'
if you guys don't think this is true, then let me come take photos of your house and i welcome you to try to sue me.
and just a nit, you can actually sell it for whatever you like, however that doesn't mean you'll not get sued. ;)
it's ultimately the responsibility of the publisher to have the proper releases and as i've said before, if you properly inform the publisher, then you will not be fined. if you just throw this up on some stock photo sites, then you may have some trouble, but on your site, no problems
putting up a building in public there is an expectation that this building will end up in photographs.
I guess if it were a masterpiece then maybe I would go for it. With this piece, I am not sure I want to bother. It's an acceptable picture, personally I like it, but I don't think I want to make a full day trip to Smith Rock, find the house, find the owner, and run to a risk of accomplishing nothing.
There is no easy access to the house from the trail because of the river going between, and it is rather impossible to locate the house from the side of hwy 26.
I don't think it's worth the trouble. I will consider putting the image to my portfolio just for display, but not for sale.
P.S. There are many pictures with houses in them that somehow sell and I don't think they all have property owner releases.
For example another picture that I am considering putting on my page for sale: http://www.pbase.com/pulkownik_swiatlo/image/88064098
It shows the Warming Hut at the Ski Bowl. I guess it belongs to someone, but do I have to go the Ski Bowl management and ask for a release?
Geee, this is becoming really ridiculous, isn't it?
Michael, this is really interesting what you are saying, and I hope it is true.
Say I walk on some mountain trail and I see a very scenic hut. Like the one in my previous post - the Warming Hut. So I stop and take a picture. It turns out very good so I want to sell it as art.
That's common sense. It's logical.
But in practice, how to protect yourself in the world full of legal traps, like the one when someone sues the restaurant because the coffee is too hot when she spilled it on herself?
Once I met a photographer who shot a picture of a sunset with a bridge and a bay, and he patented this composition. I asked why, and he replied that it was his composition and he would sue anyone who try do photograph and sell similar comp. Ridiculous!
OK, then I ask you this question: if you have a great scenic shot involving the Timberline Lodge with Mount Hood behind, do you have to go to the Lodge's owner for a release?
The article is saying that you should, that you don't have to, but your life might be easier if you do. For Timberline Lodge in particular, I myself, wouldn't bother.
ironically
i had a condo desk clerk try to tell me that i couldn't take photos out on the public sidewalk if i could see into any of the windows. i said 'ok, sorry, i'll make sure' and went ahead and shot anyway
along the lines of privacy and this condo, it's my opinion that i'm in public, anything goes, but i wonder if a person in the condo was doing something 'obscene' in the window where the public can see, would they get in trouble ? and if so, how could my photography be in violation of anything?
in the end, my opinion on the matter (which is different than the law) in my case is that you can't get blood from a stone
if anyone has issues with a photo, i'll just remove it after the letters take on a nasty note (maybe)
on a side not, anyone know the deal with disallowing tripods in pioneer courthouse square ? i mean it's city property after all.
Posted by Patrick Nixon on April 14, 2008 at 4:46 PM
This is a great thread. The issue to remember is that there is a difference between being sued and losing a lawsuit. It is easy to be sued; the real question is whether the plaintiff can win (or withstand a countersuit). Everything I've read says that privacy rights are personal and do not apply to privately owned buildings or to businesses (which are not natural persons). Similarly, I've read that in trademark law it is the purpose and use of the photograph that is determinative. Thus, if the photograph were used to create either an implied endorsement or a commercially damaging criticism, trademark infringement may have occurred. Mere depiction is not, by itself, conclusive proof of such a purpose -- even if the photograph is sold commercially.
I seem to remember that there was a recent lawsuit between "Railroad X" (anonymous for purposes of this note but a major US railroad) and a calendar photographer/publisher in which Railroad X alleged that its trademark had been infringed. This lawsuit enraged railfans and rail photographers nationwide. (Imagine the chaos if a rail photographer, especially an amateur, had to obtain a release from the photographed railroad every time one of its trains or locomotives was photographed). Railroad X alleged that the photographer/calendar publisher sought to profit from use of its trademark (because the photographs were exclusively of Railroad X trains and locomotives in scenic settings). A key factor there was that it was the trademark that was the center of interest and that only the Railroad X trademark was depicted. I believe Railroad X sought royalties or an injunction to prevent use of its trademark in a commercially damaging way. I'm not sure of the outcome of this lawsuit; it may have been settled without a finding by a court.
Similarly, books are commonly published that contain photographs of freight cars and locomotives, sometimes bearing the logos or federally required "reporting marks" of only one railroad and sometimes, of assorted railroads. I'm not aware of any instance in which such a publisher has been successfully sued by a railroad for trademark infringement.
This is where another legally important factor comes into play. For a commercial plaintiff to succeed on a claim that the defendant is liable, it is generally going to have to prove that its trademark is not only being used but also used in a harmful or some other commercially impermissible (such as implied endorsement) way. Similarly, a private person who sues is going to have to prove he is being (or is likely to be) harmed in some way. Courts don't look favorably on picayune or "frivolous" lawsuits, especially by big companies with phalanxes of lawyers, merely to make a profit in the form of royalties. Or, for that matter, on lawsuits by any kind of plaintiff over nothing. This is the reason, I suspect, that the book publishers have not been successfully sued. They are not harming the railroads, indeed arguably are depicting the railroads favorably, even "advertising" them.
For all these reason, my guess as a photographer (not a lawyer, not giving legal advice) is that the risk of actually losing a lawsuit in a situation where the photograph is being depicted in an artful, non-harmful, manner is low. But, if one wants to prevent being sued, and the bother thereof, a release might be a good idea.
I'm also told that there may be some law developing in the real estate area, where brokers take photographs of properties and use them in a commercial way. What I and others in this thread have said may be interesting, but it may not be complete, up to date, or applicable to the circumstances of a particular photograph. I've referred to the rail photography and real estate photography contexts because I am aware that issue you presented (need for a release) arises in those contexts as well. As in all things legal, if one wants more complete and firm advice, he should seek a lawyer.
Posted by Patrick Nixon on April 14, 2008 at 5:01 PM
Also, I believe trademark and copyright lawsuits must be held in federal court where I believe the complaint or prayer for relief must allege that the harm involves economic damage or deprivement of $10,000 or more or that a statutory requirement or prohibition is being ignored or violated, respectively.
Thanks Patrick for your valuable comment. Still don't know what may happen if the owner of the house finds the picture on a gallery and feels uncomfortable about his home being displayed on numerous desktops.
Nevertheless, since it is not an Ansel Adams quality of a picture so I can easily pass on it.
Cezar
I have a photo of a very recognizable house in an orchard (the house is not really the focus of the photo). Someone came into the Coffee Co., saw the photo, said "wow, that's cool! That's my parent's house" and bought the photo.
Posted by Geoff Shapiro on April 14, 2008 at 8:39 PM
Good story, Mark. That was the rational response. Unfortunately, not all people are rational!
Posted by Derek Sedillo on April 14, 2008 at 10:50 PM
Cezar,
I really must say you have some awesome man and nature shots in your gallery. My favorite is this recent tulip and windmill shot. I showed it to my wife who is Swedish and she loved it: http://www.pbase.com/pulkownik_swiatlo/image/95113254
Posted by Cezar Mart on April 14, 2008 at 11:27 PM
Derek,
I thought it was the Dutch that liked tulips and windmills.
Posted by Patrick Nixon on April 20, 2008 at 1:21 AM
Buildings created after Dec 1, 1990 are copyrighted, but there is an explicit "photographer's exception" to the copyright law whereby anyone may photograph any private or public building (except for designated military installations and nuclear facilities) that is located in a public place or visible from any public area. This exception does not apply to monuments, statues, or works of art.
There is a difference between the right to take a photograph and the right to use it commercially afterward, which may be more restricted. This is where trademark law may come into play. But even there your commercial use of the photo may be "fair" or harmless.
Discussion
38 repliesDoing this I came across an image that I am not sure if I can put on my site and advertise for printing. The problem is that that image has a private house in it. I don't know whose house it is, somewhere by Smith Rock Park, somewhere in the depth of Oregon.
Can I put the image on my site and advertise it? Am I violating any rights? Is there a common sense into it, like: "do it anyway - who cares?"?
This is the link to the image:
http://www.pbase.com/pulkownik_swiatlo/image/76306793
Thanks for your help,
Cezar Mart
Two books that can be of assistance are:
Business and Legal Forms for Photographers by Tad Crawford
Best Business Practices for Photographers by John Harrington
Thanks Rick!
"A property release says that the owner of a certain property, such as a pet or a building, has given you consent to take and use images of the property. You don’t need one for public property, such as government buildings (although you may run into problems just from photographing them, for security reasons). But for images of private property — and particularly of objects that are closely identified with specific people — you are safer if you get a release."
Link to more
http://www.asmp.org/commerce/legal/releases/
When you are on public property you can shoot ANYTHING you can see. You can't SELL shots of private residences or people who have a reasonable expectation of privacy though. You can print it and hang it on your wall. I'll bet you can even give it away. If the house were burning down or if it was being raided by the police, then it's a news event and you can sell it to a newspaper for editorial use. You couldn't sell it to a fire alarm company to use in their ads.
As to if it's Hood or Jefferson, I was sure for the whole time and at the time of the shot that it was Mt Hood. I am willing to bet money on it. It was taken from the Torture Trail, or whatever it was called. I mean the trail by the Monkey Head to - oh now I remember - the top of the Misery Ridge. Yes, the MISERY Ridge.
I know Mt Hood and I know Jefferson, and it was clearly Mt Hood. From the trail to the top of Misery Ridge. Unless I was so exhausted having to carry the whole equipment including the heavy tripod, that my senses got messed up.
Now I am confused by the confidence in Mark's voice, so the only solution to this is to go over there again. Oh bother!
If you look west, you see the 3 Sisters, if you look north there is Jefferson, and eventually Hood far on the horizon a little bit to the right of Jefferson.
MOUNT JEFFERSON...
Or why does it matter? It could be Annapurna, my life situation would not change even a bit...
Thanks guys :)
Cezar
Actually, it will only matter when someone buys it BECAUSE it is Mt Hood. After they find out it wasn't...there would be some red faces
Damn nice cabin tho!!
putting it on your site is publicizing and not publishing it. again it's your art, you can publicize however you like.
the only time you may have trouble is if you can see something happening on the property which could be construed as defamation, slander or libel (such as if you could see the meth lab through the window)
i can walk around all day in portland and take and sell photos of houses and buildings, this is not any different and it's absurd to think that any court would take the side of the property owner.
you even have every right to sell it for advertising as it's the publisher's responsibility to be in possession of the proper documentation (your responsibility to collect the paperwork). however you must 'advise' them before hand that you cannot 'advise' them as to their rights or responsibilities of publishing the image and tell them (in writing) that it's their responsibility. i would not do this however.
Mark hit the nail on the head for translating all the stuff about needing a release or not into common sense. And it's definitely not a good idea to, "do it anyway- who cares," unless you are eager to risk an expensive trip to court in a lawsuit. Too bad, 'cause it's a nice photo. Perhaps the homeowner would sign a release in exchange for a nice print of it? All the best in growing the hobby into a business.
Without a release, you can put it on your website as an example of your work and you can sell reproduction rights for _editorial_ use to magazines, books and other websites. You cannot, however, sell rights for _commercial_ use such as advertising, without a release.
Without a release, you could not sell prints for something like display in a real estate office (commercial/advertising use), but you can sell prints to individuals for personal display.
expensive and lengthy legal battles ? NO WAY will it make it any farther a few letters exchanged between photographer and home owner. the simple answer to people not wanting their property on the web is usually 'well i shot it because it looked cool and if you want me to remove it, i can, but then no one will be able to see this cool shot of your place, then we both lose if that's what you want'
if you guys don't think this is true, then let me come take photos of your house and i welcome you to try to sue me.
and just a nit, you can actually sell it for whatever you like, however that doesn't mean you'll not get sued. ;)
it's ultimately the responsibility of the publisher to have the proper releases and as i've said before, if you properly inform the publisher, then you will not be fined. if you just throw this up on some stock photo sites, then you may have some trouble, but on your site, no problems
putting up a building in public there is an expectation that this building will end up in photographs.
There is no easy access to the house from the trail because of the river going between, and it is rather impossible to locate the house from the side of hwy 26.
I don't think it's worth the trouble. I will consider putting the image to my portfolio just for display, but not for sale.
For example another picture that I am considering putting on my page for sale:
http://www.pbase.com/pulkownik_swiatlo/image/88064098
It shows the Warming Hut at the Ski Bowl. I guess it belongs to someone, but do I have to go the Ski Bowl management and ask for a release?
Geee, this is becoming really ridiculous, isn't it?
Say I walk on some mountain trail and I see a very scenic hut. Like the one in my previous post - the Warming Hut. So I stop and take a picture. It turns out very good so I want to sell it as art.
That's common sense. It's logical.
But in practice, how to protect yourself in the world full of legal traps, like the one when someone sues the restaurant because the coffee is too hot when she spilled it on herself?
Once I met a photographer who shot a picture of a sunset with a bridge and a bay, and he patented this composition. I asked why, and he replied that it was his composition and he would sue anyone who try do photograph and sell similar comp. Ridiculous!
i had a condo desk clerk try to tell me that i couldn't take photos out on the public sidewalk if i could see into any of the windows. i said 'ok, sorry, i'll make sure' and went ahead and shot anyway
along the lines of privacy and this condo, it's my opinion that i'm in public, anything goes, but i wonder if a person in the condo was doing something 'obscene' in the window where the public can see, would they get in trouble ? and if so, how could my photography be in violation of anything?
in the end, my opinion on the matter (which is different than the law) in my case is that you can't get blood from a stone
if anyone has issues with a photo, i'll just remove it after the letters take on a nasty note (maybe)
on a side not, anyone know the deal with disallowing tripods in pioneer courthouse square ? i mean it's city property after all.
I seem to remember that there was a recent lawsuit between "Railroad X" (anonymous for purposes of this note but a major US railroad) and a calendar photographer/publisher in which Railroad X alleged that its trademark had been infringed. This lawsuit enraged railfans and rail photographers nationwide. (Imagine the chaos if a rail photographer, especially an amateur, had to obtain a release from the photographed railroad every time one of its trains or locomotives was photographed). Railroad X alleged that the photographer/calendar publisher sought to profit from use of its trademark (because the photographs were exclusively of Railroad X trains and locomotives in scenic settings). A key factor there was that it was the trademark that was the center of interest and that only the Railroad X trademark was depicted. I believe Railroad X sought royalties or an injunction to prevent use of its trademark in a commercially damaging way. I'm not sure of the outcome of this lawsuit; it may have been settled without a finding by a court.
Similarly, books are commonly published that contain photographs of freight cars and locomotives, sometimes bearing the logos or federally required "reporting marks" of only one railroad and sometimes, of assorted railroads. I'm not aware of any instance in which such a publisher has been successfully sued by a railroad for trademark infringement.
This is where another legally important factor comes into play. For a commercial plaintiff to succeed on a claim that the defendant is liable, it is generally going to have to prove that its trademark is not only being used but also used in a harmful or some other commercially impermissible (such as implied endorsement) way. Similarly, a private person who sues is going to have to prove he is being (or is likely to be) harmed in some way. Courts don't look favorably on picayune or "frivolous" lawsuits, especially by big companies with phalanxes of lawyers, merely to make a profit in the form of royalties. Or, for that matter, on lawsuits by any kind of plaintiff over nothing. This is the reason, I suspect, that the book publishers have not been successfully sued. They are not harming the railroads, indeed arguably are depicting the railroads favorably, even "advertising" them.
For all these reason, my guess as a photographer (not a lawyer, not giving legal advice) is that the risk of actually losing a lawsuit in a situation where the photograph is being depicted in an artful, non-harmful, manner is low. But, if one wants to prevent being sued, and the bother thereof, a release might be a good idea.
I'm also told that there may be some law developing in the real estate area, where brokers take photographs of properties and use them in a commercial way. What I and others in this thread have said may be interesting, but it may not be complete, up to date, or applicable to the circumstances of a particular photograph. I've referred to the rail photography and real estate photography contexts because I am aware that issue you presented (need for a release) arises in those contexts as well. As in all things legal, if one wants more complete and firm advice, he should seek a lawyer.
Nevertheless, since it is not an Ansel Adams quality of a picture so I can easily pass on it.
Cezar
I really must say you have some awesome man and nature shots in your gallery. My favorite is this recent tulip and windmill shot. I showed it to my wife who is Swedish and she loved it:
http://www.pbase.com/pulkownik_swiatlo/image/95113254
I thought it was the Dutch that liked tulips and windmills.
There is a difference between the right to take a photograph and the right to use it commercially afterward, which may be more restricted. This is where trademark law may come into play. But even there your commercial use of the photo may be "fair" or harmless.