Does the grower of a flower own the rights to the images of the flowers

[hknauer]

There are a couple of flower gardens near where I live, one in a

public park and one on private property. There is no admission price

to either and no signs posted about photographing the flowers other

than the usual 'please keep off the flower beds'. People continually

photograph, paint, or sketch the flowers. Can I photograph the

flowers and sell the images without any type of release. Is there a

copyright in effect here? Do the owners of the flowers own the right

to restrict sale of the images if there is no restrictions posted.

If the owner's of the flowers accept donations, does that change

anything.

[eric friedemann]

No, the owners of flowers do not own copyrights to images of the flowers. In theory, if there were a special hybrid flower, the developer/creator of the flower could trademark the flower. However, that apparently isn't the case in your fact situation.

 

 

Also, the gardens you speak of could be unique places that could be trademarked. However, trademarking a place, usually a building, is extremely rare.

 

 

A high-profile case involving a photographer's right to photograph and sell images of real property occurred in The Rock and Roll Hall of Fame Museum, Inc. v. Gentile Productions, 134 F.3d 749 (6th Cir. 1998).

 

 

Gentile, a photographer took a superb image of the R&R Hall of Fame Museum and started selling the image on postcards, etc. The museum sued Gentile alleging trademark infringement and unfair competition and won at the trial level:

 

 

http://courses.cs.vt.edu/~cs3604/lib/Copyrights.Patents/Buchholz.poster.HTML

 

 

The Sixth Circuit Court of Appeals vacated the trial court's ruling, as the museum had trademarked the phrase "The Rock and Roll Hall of Fame," but had not trademarked the unique museum building itself:

 

 

http://www.law.emory.edu/6circuit/jan98/98a0020p.06.html

[kevin_lee5]

Eirc:

 

Thank you for the very interesting links; they are very educational.

 

Kevin

[NK Guy]

It's more an issue of whether you have permission to enter the grounds in question. If the

owner of the grounds permits you to do then you're fine. But if they don't allow

photography or commercial photography on their property then you're out of luck. You

can't copyright flowers or arrangements, though as noted you can invoke trademark law

under certain cases to restrict the uses of certain buildings, places and so on.

 

Some people advocate asking for permission first. Others advocate going ahead and

shooting discreetly and begging forgiveness if hassled.

 

This is not legal advice - consult a lawyer if you want that.

[joshwand]

Except in Santa Barbara, where the rose gardens are off-limits to commercial photography without (I believe) a fee/permit.

[eric friedemann]

Much as I would like to take a swipe at the People's Republic of Santa Barbara, there are a number places in the country where permits are required for COMMERCIAL shooting- still and motion picture (e.g. NYC).

[bill c.]

Everyone needs to understand this-- technically, anything that is owned by an individual or other entity requires a property release, unless otherwise stated. In a pratcial sense, this is very difficult to enforce. The case with the Rock And Roll Hall of Fame had the added situation that the structure was a building on public display. This might also be applied to the private garden that allowed free public access.

 

And everybody needs to understand one other thing, as related to me by a law professor-- ON ANY GIVEN DAY, THE LAW SAYS WHAT A JUDGE SAYS IT SAYS. Period. Everybody's right and everybody's wrong all at the same time. That's what keeps lawyers in business (hey, most of the laws were written by lawyers, whadaya expect?).

 

If you photograph the flowers at a private garden and publish them, the owner probably could probably find some grounds to sue. He might win, he might not. If you are only earning about a hundred bucks from the photo, it's not worth it for either party involved. If, however, the flower was a special hybird that the person had developed to be extremely photogenic and had hoped to license for special use, it might be lucretive to sue you, but then why would he have it on public display in the first place?

 

One one assignment where I photographed a model posing as a diplomat getting out of a limo. I got a property release from the limousine company as well as a model release from the model. I also got a property release from an individual who loaned me a hummer for a shoot. Did I really need them? Probably not, but my gluteus maximus was covered just in case.

 

In terms of the garden, if it was me, and there were no signs posted to the contrary, I wouldn't worry about it. -BC-

[eric friedemann]

"If you photograph the flowers at a private garden and publish them, the owner probably could probably find some grounds to sue. He might win, he might not."

 

1. If a photograph of a "private" garden were taken from a public sidewalk or public parkway, the owner would have no grounds to sue, absent a very rare trademarking situation, as discussed above. (Note that the R&RHF Museum photographer did not trespass on museum property to obtain his photograph.) Further, a district attorney would have no grounds for a criminal action.

 

In 2003, Barbara Streisand sued the environmental group California Coastal Records Project for posting a photograph of her home shot from public airspace. Streisand got her ass handed to her and was forced to pay the defendants' $177,107.54 in legal fees:

 

http://www.californiacoastline.org/streisand/lawsuit.html

 

2. If a photograph of a "private" garden is obtained by trespassing on private property, there could be both civil and criminal penalties against the trespassing photographer. Also, the photographs themselves could be used as evidence of trespass.

[bill c.]

---In 2003, Barbara Streisand sued the environmental group California Coastal Records Project for posting a photograph of her home shot from public airspace. Streisand got her ass handed to her and was forced to pay the defendants' $177,107.54 in legal fees:----

-------------------------------------------------------------

 

Soemwhat different situation there. We need to break things down into "commercial purposes" and the right to "educate or inform"--which I should have done in my previous post. The California Coastal Records Project WAS using the image to "educate or inform," which does NOT require a release. Thus, if Howard took a shot of the private gardens on public display and it was published in a newspaper, magazine, or textbook to illustrate an article that educated or informed, no release would have been required.

 

HOWEVER, if Howard took a picture and it was used in a poster, that is commercial use and becomes an entirely different kettle of fish. Again, though, if the garden was on public display, the owner should have no expectation of privacy and how could he prove it was his flower or not? By the time the case rolled around the bloom would be shriveled up and rotted.

 

The legal ramifications of use are very much the same as if it were a person, though the parallels are not exact and it of course varies from state to state. Imagine that you see Britney Spears walking down the street and you grab your camera and snap a picture. She was a public person in a public place. You could use it on the cover of People or whatever other magazine you wished, or to illustrate an article or a chapter in a textbook, but you could not use it in an ad without her permission.

 

With certain exceptions, the same is true for inanimate objects, though most such objects are common enough that such is not necessary. There are certain very esoteric reasons why this was not the case with the R&RHOF, but this post is getting a bit long already.

 

Consider this-- If it was not an advocacy group that took the aerial shot of Streisand's house, but a photographer putting out a poster series titled "Beautiful Houses of California," and the poster was published, the party who's ass was handed to them would not have been Streisand's.

 

To clarify things a bit further, technically if you are using an image of an object for commercial purposes and the image was taken in a public setting, if you do not have a release from the owner there are some retained rights he could use to attempt to sue you, but only in extraordinary curcumstances would that actually come about or be successful. The publishing of images to educate or inform does not require a release--at least, not in the United States.

 

BTW, if you go to the Sears House or the Octagon House or several other privatly owned commercial establishments in Washington, DC and try to take pictures, you will be shown the door, as certain photographers have exclusive rights to the photography of at least the interiors of those buildings. And I know of at least on photographer who took an image of the exterior of the Sears House and tried to use it on a poster (with several other building featured), and lost a lawsuit and many thousands of copies of his poster were destroyed. That was in the 1980's.

 

As pointed out, things change if you trespass or use extraordinary means to obtain your image. Britney Spears sunbathing topless on the roof of her high-rise condo? Take the shot from a passing aircraft and it's yours--for non-commercial purposes. Britney Spears topless on the same roof but under a tarp and surrounded by a canvas privacy fence, and your helicopter blows the tarp off while you get the shot, if you even show the image to anybody else your hide would be shredded to atoms, not to mention the trouble you'd be in even without the photographic aspect.

 

 

Climbing over a privacy fence or even up a tree to get shots of the flowers and you might face a less severe application of the same statutes, no matter what the use. Taken from the street and USED COMMERCIALLY, I still say that while there would be virtually no PRACTICAL problem, esoterically there would be some legal grounds backing the owner if he decided to sue, though probably fewer in number and weight than the grounds the photographer had in claiming fair use.

 

Basically, we're coming to the same conclusion but from different POV's. Anyhow, it's late and I'm going to bed. -BC-