Liability concerns about photographing buildings

Howdy,

<p>

Do you architectural photographers/lawyers have any anecdotal or legal information about the necessity for a release for photographing a private home?

My situation is this: I have photographed houses -- I was usually standing on public property (the street or sidewalk) at the time -- and they will soon be published in a book. The publisher is concerned about being sued for violation of rights of privacy & property, and had asked me to sign a warranty indemnifying them against any claims to that effect. I have verbal permission from most of the homeowners, written releases from a few (including the owner of the house on the book's cover), but there are a few who I am unable to contact for permission. Also, some have since died or sold their houses to new owners.

<p>

It has been my understanding that if you are using a photograph for editorial (e.g. educational) purposes inside a book, and did not trespass, you do not need a property release.

<p>

Keeping in mind that it will be impossible for me to obtain all fifty of the releases, what would you estimate is my likely liability exposure here?

<p>

Thanks.

Dear Sandy

<p>

I am not a lawyer, nor an expert, but from my real estate experience

I do not see where you would have too many issues. Unless a home

clearly shows the street address (where you might be inviting others

to go to the home) or unless you are showing the owner's name on say

a mailbox, I think you are probably entitled to 'fair use'. If I

recall, it is similar to shooting a crowd or urban sidewalk shot

where there are numerous people, but no one person is specifically

the subject of the image. Also, I presume you are not using the

photo to make fun, ridicule or embarrass the home owner.

<p>

I remember a building in Dallas in the mid 80's where the architect

posted a sign saying that taking photos was illegal and against their

claim of copyright. I can't imagine their being able to perfect a

claim if the shot had been taken from a city sidewalk or street.

Sometimes, I think narrow minded people cause more attention than if

they did not pursue objections.

<p>

Regards,

<p>

John Bailey

<p>

PS Tell us when the book is published so I can look for it at the

bookstore!

Sandy...it could go either way, really. I'd be hesitant to say you'd

be okay in the litigious society we live in today....when I think of

editorial I think of newspaper usage, reporting etc. not necessarily a

profit making venture. There's a fine line there for sure, because as

you've said you weren't on private property when you shot it....I

would suggest getting in touch with a lawyer who deals with this sort

of usage...if you were in the ASMP, or NPPA, or PPA, I would say this

would be the place to start...the fact that you're talking about

liability insurance (and I usually think of this in regards to having

an unforeseen accident occur on a shoot....like a light tips over &

burns down your client's house...), means that you've been considering

this a bit....the ASMP handbook may be a good place to look for some

guidance...

This is, I believe, is another good place to start:

http://www.photosecrets.com/p14.html

TRAVEL PHOTOGRAPHY AND THE LAW, suggests answers to some of your

important questions

<p>

From the Photo Secrets web site.

BTW: In the US, some buildings-as the article indicates-do have

copyright!

1.) Don't take legal advice from people who are not lawyers. I am

not one so I am not going to give you any.<P>

2.) Books are not, as far as I can tell, editorial projects. Editorial

means you are despinsing information for the common good.

Books are published for someone -- you or the publisher or

both--to make a profit. they are a commercial enterprise. you can

call it what you like, but proving it may be an expensive

matter.<P>3.) Certainly you are intelligent enough to have a

lawyer who is reviewing your contract for you. Your publisher has

one: You should too.<P>4.) Get some stiff liability insurance that

specifically covers this possibility. Think of your lawyer as part of

your insurance policy.

Move to a country that doesn't have such a monetaristic sueing

mentality. ;^)

Sandy, I'd go with the advice to seek professional advice! Here in

the UK it's okay to photograph buildings ( I think!!!!) as long as you

do it from public rather than private property. In France, I believe

that ALL public buildings are protected by a form of copyright!! but

this is rarley enforced. I would assume that in your case as long as

the owner gives you permission you are okay, but who knows?? I would

have thought that most people would be "honoured" to have their homes

etc immortalised on film, but I think Peter hit the nail on the head

when he mentions the "sue them all" mentality that seems prevalent

today. I wonder where we would stand if as a photographer we took

photos of an abandoned building, you know the sort, all overgrown,

dilapidated and moody......after all someone, somewhere probably owns

it!! Go

Hi folks,

I found a website (cni.org) about where there was a long, interesting

discussion of these issues, by Google-searching on "permission to

photograph buildings." The participants seem to be lawyers and law

professors. Regarding copyright *by the architect* it is not an

infringement to photograph a private home from a public place

(street). However, there does seem to be room for another

interpretation regarding the homeowner's rights. But I think I am OK

with my project, because one lawyer wrote in saying that for a privacy

infringement to be considered, the home would have to be strongly

associated with the identity of the owner. "Certain homes are so

famous and associated with their owners that an unauthorized picture

used for commercial purposes may give rise under many states' laws to

civil liability outside the realm of copyright." He cites a case

where someone's well-known house appeared on the label of a can of

house paint, unauthorized.

I may also be somewhat protected by the notion "commercial purposes"

since it will be a miracle if I make any money from a book of black-

and-white photographs of unknown houses, published by a university

press. I do consider my project educational, and never undertook it to

make money.

Still, I am considering looking into liability insurance.

Thanks everybody.

sandy - two of the books i have had published by the oregon

historical society included large numbers of photographs of private

residences and commercial buildings. the lawyers for OHS assured me

that there is no legal restraint on taking photographs of anything

that is within clear view from public-owned property (anything you

can see from the street is fair game). you do not need releases from

any of those property owners.

Sandy,

<p>

As always the first thing you should do is contact a intellectual

property attorney for a clear reading on the issue. Second, as an

Architect I can tell you that the US Copyright Statute protects the

architects drawings from unauthorized copying as well as the design

against "copycat" designs by others.

<p>

There is nothing that I have read within the statute that precludes

anyone from photographing one of my building and publishing it as

long as you have photographed it in the public domain.

<p>

Seriously though, I would be pleased to have you photograph and

publish one of my "monumental works".

<p>

Good luck,

<p>

-Mike

<p>

Michael J. Kravit, AIA

Kravit Architectural Associates, Inc.

902 Clint Moore Road

Suite 136

Boca Raton, Florida 33487

561.893.0041

Sandy,<P>

The things I am still troubled by is:<P>

1.) Your publisher has a lawyer checking over their contract, and

they are asking you to bear the cost of their legal defense and

liabilities if they are sued. That is what an indemnification

iclause does -- shift responsibilty from one party to the other.<P>

2.) You are willing to sign this legally binding document that was

written by lawyers without seemingly being willing to get a

lawyers help in understanding what the document says. This is

very foolish, but we all do it on a regular basis.<P>3.) Your

willingness to advice from people who don't know the difference

between simply taking a photograph and publishing that

photograph.<P>4.) It doesn't make a difference if the

bookventure makes a dime for you or not, it is still a commercial

venture.<P>Now if your book is truly educational, let's say it is a

how to manual, you might be okay. But once again: <I>please

check with a lawyer!</I><P>

I am amazed about the learned advice which seems to be present on the

topic!I am not a lawyer, but I came across this problem several times

However, in Europe (UK, I am afraid, is a part of this too) Copyright

law extends to buildings too, and that means 70 years after the death

of the architect (the copyright will be owned for that time from

his/her heirs).

This is the theory, in practice, you can take a picture, get a permit

from the author , maybe pay a little fee for this, or risk that they

never know anything about it. Best asking a permit, my experience is

that reactions are almost always positive.

Hi Ellis,

<p>

I hear ya, but I am definitely NOT willing to sign the warranty clause

the way it is without consulting lawyers, which is why I am soliciting

advice and information about precedents via the web. The cni site I

mentioned before has opinions about this by lawyers. I also have an

excellent book by lawyer Mark Levine called "Negotiating a Book

Contract." It tells me exactly what every line in the warranty clause

implies. I am not at all happy with the clause, but it is possible if

I don't sign it, my deal will fall through after many years of

preparation. The publisher tells me they will not change a word of

this clause. Therefore I am sifting through information from

photographers and lawyers and architects to see all sides of this

rather ambiguous issue, and evaluate my risk. I now think my risk of

exposure here is pretty low.

<p>

It probably wouldn't surprise you to learn that many photographers

just sign these book contracts without trying to change anything. I'm

trying to change at least 40 phrases in the damn thing, based on

advice from lawyer Levine and several photographers who have

published.

<p>

What it comes down to is, a first-time author has no clout. I'm

trying to act like I do, though!

<p>

Cheers,

Sandy

Sandy,

<p>

It will be interesting to hear from you on how you ultimately make

out with respect to this issue.

<p>

Take a look at the copy right statute on the US Copyright Office web

page. I assume this is a US Copyright issue.

<p>

One quick obeservation, if it were illegal to photograph building in

the public domain, then every book that just happens to show a

building would need a release by the architect of that building. I

imagine the same would be necessary for magazine publications and

newspapers. This just does not seem to be the case.

<p>

As always prudence now can save you a lot of heart ache later.

<p>

Regards,

Mike

Sorry Sandy,

Obviously you are stuck between a rock and a hard place on this

one. having you considered approaching the current owners

ofthe property and getting them to sign a release in exchange ofr

say, a print and a copy of the book? One thing to leep in mind is

that the release then becomes part of the property of the house

and if the house is sold the release is part of the property

transfered to the new owners and remains binding, at least that

is my understanding, so you should let anyone who signs such

a release know that they should file it with the important papers

relating to the house.

Sandy - I heartily agree with Pete Andrew's senitments. Really sad

that we live in such a BS country (and that the rest are worse hardly

excuses our failings)where everyone is snorting out a buck to the

point where they're losing sleep over the possibility that somehow,

somewhere, somebody may be "wrongfully" making a few dollars off what

they think is there's. How times do you see worthless photos that

are copyrighted? This goes all the way to the top where no doubt we

have congressman (in the hip pockets of the entertainment industry)

who think it's not fair that an American can travel to their public

lands and enjoy it for free. The Nerve! How can Disney, et. al.,

compete against this? Gotta put a stop to this!

<p>

And the lawyers are partly to blame, but no more than the average

American who seems to highly value their services. And all this

propaganda about how the legal profession is essential for preserving

our freedoms is a lie. For every lawyer that is fighting for the

rights of the individual, there are ten who are working overtime for

corporatate America or the Feds trying to enslave us. Read Jerry

Spence and others if you doubt me, or better go down to the court

house, get a DUI, get hauled into court to how the system really

works.

<p>

I'd be willing to wager that this book will not make you rich, in

fact it's probably just a way for you to make the rent, not exploit

homeowners. That's the sad thing, anyone who would sue wants a piece

of the action, when in fact it's probably not going to be that much.

I have a friend who shoots for photo books and explained how little

the money is, especially when you consider that the person writing

the text receives far more, for much easier work (IMHO).

<p>

T

Todd, your point about writers is all too true. I was discussing a

future book project with a packager and he suggested a moderately

well-known writer we could use for the text, telling me to offer the

writer $30,000 for the project. Did anyone offer me two cents for my

80-100 photographs? No way; in fact often a fine art photographer has

to put in some of her own money to ensure decent production values.

Gradually, we must assert our value in the marketplace. It's pretty

hard, though, with so many photographers out there eager to do books

for nothing, and with the public and publishers having little

understanding of the worth of photography.

<p>

Ellis, yes, I've given most of them original prints. I can't offer

them books (unless I buy them) because authors typically only get 10

or 20 free copies. I sent releases to some owners in the mail and not

all of them responded. And, a few of the houses were abandoned and

rural with no apparent address.

<p>

Cheers.

I am a layer (sorry Todd), but I don't practice in any field remotely

close to the areas that your question touches on so please take the

following with many many grains of salt. First, I don't understand

why you're concerned with copyright law. You don't seem to be using

any copywritten material, you're using your own photographs of the

houses. A house as such can't, as far as I know, be copyrighted and

you aren't using someone else's photographs, so what copyrighted

material are you supposed to be using and who is supposed to own that

material? I suspect that your publisher is concerned more with

invasion of privacy and similar concepts rather than copyright

violations (though your indemnification agreement may refer to

copyright law in order to protect the publisher against the

possibility that one or more of the photographs were made by someone

other than you). The distinction between copyright concerns and

invasion of privacy and similar concerns is important because

copyright law is federal, whereas invasion of privacy and similar

laws are usually matters of state law, so that if I'm correct

anything you find on the internet is not going to be very useful

unless it relates specifically to the laws of your state (again,

keeping in mind that I don't practice in this area so possibly

there's some copyright concern that I'm missing). FWIW, and it's

worth very little, it has always been my understanding (derived from

where I don't know) that a property release was needed in order to

use a photograph of private property in a commercial venture though

this may be only when the property is identifiable (such as if your

photographs and/or captions identify the houses by address). Finally,

and again only FWIW, I don't think the fact that you stood on public

property to make the photograph is important. All that means is that

the property owner can't sue you for trespass or something similar,

but I don't think it affects the property owner's rights of privacy.

I'd echo the concerns of others and urge you to seek the advice of an

attorney in your state.

Try this guy, whose on the street photo list - just a thought:

<p>

Bert P. Krages

Attorney at Law

621 S.W. Morrison Street, Suite 1300

Portland, Oregon 97205

<p>

krages@teleport.com

<p>

Author of:

Legal Handbook for Photographers : The Rights and Liabilities of

Making Images

<<http://www.amazon.com/exec/obidos/ASIN/158428059X/qid=991688126/sr=1

-2/ref=sc_b_2/102-8971438-

9216965>http://www.amazon.com/exec/obidos/ASIN/158428059X/qid=99168812

6/sr=1-2/ref=sc_b_2/102-8971438-9216965>

Brian and Tim, Thanks. I will look into those websites. Today I spoke

with a lawyer who is very experienced with photographic book

contracts, and also read another book on the subject. Brian, you'll

see from my original question that I am not worried about copyright.

(However, artworks like photographs and buildings designed by

architects are inherently copyrighted without being registered, in the

sense that another person cannot claim that work as his own. A

photograph of a building does not fall afoul of that.) I am, however,

worried about some all-encompassing language about privacy rights in

the Warranty clause of my contract .

<p>

It seems pretty clear to me after all my research that the publisher

will not change a word of his indemnity clause because his own

liability insurance is based on it. Therefore, I have to make sure I

am covered by obtaining releases, at least for those properties where

I was not standing on public property. It does make a difference where

you were standing because (the lawyer tells me) if you have only

photographed what anyone can see with his own eyes passing by on a

public street, there is no privacy issue. Makes sense to me.

<p>

Obviously it is better for me to have all the releases, then we

wouldn't be having this discussion. But as I stated above, I can't get

them all. I photographed thousands of houses for my book "Fifty

Houses,", not knowing which fifty I would choose, and did not want to

try to get releases every time. (As you all know, that taints the new

relationship between photographer and subject/owner and makes it hard

to gain their trust.)

<p>

BTW, today I also talked to a photographer who published a book of

photographs of buildings for the same publisher I have. He did not

get a single release, and he has not (yet) been sued or threatened.

<p>

I'm gonna sign the thing, but work hard to get the remaining releases.

I do have a release for the cover photograph (the cover is construed

as advertising for the book) and for a few where I stood on private

property.

<p>

Cheers, Sandy

Please let me know when the book is coming out, I look forward

to buying a copy.

"Fifty Houses" will come out in Fall 2002, it looks like. But it's not

large format! Do you still want it? Well, I did use shift lenses on

my Nikons. Like little view cameras....

<p>

I talked to the publisher today and will probably get a stipulation

that if some nut sues us and I am found not to have violated my

warranties, the publisher will split the legal costs with me. I'm

pleased to get that concession.

> I'm gonna sign the thing

<p>

I think you'd best line up some sort of insurance for yourself for any liability you may encounter as a result.

<I>It does make a difference where you were standing because (the lawyer tells me) if you

have only photographed what anyone can see with his own eyes passing by on a public

street, there is no privacy issue. </I><p>

Sandy, I am cetrainly not a lawyer and I hesitate to contradict a legal opinion you received from a

lawyer but this just doesn't sound right to me. For instance if you snapped a picture of me in

clear veiw from a public place and then sold the image to Phillip Morris for their new cigarette

add campaign I think I would be on strong legal ground if I sued. I don't really know how that

changes when it's my house rather than my likeness<P>

There seems to be some confusion when talking about privacy issues in that many people

confuse intrusion with appropriation. Intrusion involves gathering information about somebody

by physical or mechanical means. It has nothing to do with publication of the information.

Appropriation, which is the real issue here, is the use of a person's name, likeness or identity for

trade or commercial purposes without consent. Appropriation and intrusion are two of the four

torts to which most states give common law recognition (The other two being Public disclosure

of embarrasing private facts and false light). The impostant point is that appropriation has

nothing to do with intrusion, you can be liable for appropriation even in a public place. The best

defense from appropration claims of course is a release (or unidentifiable subject). These issues

can get complicated because some states make distinctions that others don't. For instance

some states see a distinction between normal people and celebrities. Celebrities seek out

publicity and therefor shouldn't suffer emotional distress from public attention but on the other

hand they can claim loss of income when somebody uses there image in a commercial way.

These nuances are where a lawyer that really knows his/her way around privacy law can be very

helpful. Good luck. I would be very interested to hear more ideas/opinions.