Property release problem?

[rod_melotte]

<p>I took a photo <strong>from a sidewalk</strong> of a wonderful house. My question is can I use this image as artwork at an art fair knowing I would not sell it but I would be using it as an example of what I can do.<br>

.<br>

For instance - I have several other prints of homes that I was commissioned to do and I want to hang them in my booth at art fairs with something like "I can take photos of your homes" (just a silly wordy example) with canvas prints of the homes. Can I include it?</p>

[gia_hillenbrand]

<p>might be a good idea to go to the home owner and offer a print (in hand) and explain -</p>

<p>they may LOVE a picture of it....and then from there they can tell their friends</p>

[kevin_delson]

<p>Possibly causing some irritation to the homeowner aside....</p>

<p>1) If you did not invade their expectation of privacy...<br>

2) If you do NOT "associate" their home or make inference to another product by way of endoesement...<br>

3) You do<strong> NOT</strong> sell that print...<br>

4) The photo is purely for "self promotion...</p>

<p>I see no problem from a legal stand point.</p>

[Spearhead]

<p>You can sell the print. It's not an endorsement of any type.</p>

[john_h.1]

<p><em>3) You do<strong> NOT</strong> sell that print...</em><br>

<em></em><br>

Why do you think that an image that just happens to have a building or house requires some sort of property release?<br>

<em><br /></em></p>

[rod_melotte]

<p>The problem is that I AM using it as advertising. I'm not real worried - just curious on future things</p>

[williamchuttonjr]

<p>To be on 100% safe you should acquire a property release.<br>

Advertising usage could imply the property owner endorses your business. If you make it clear that the property owners were not customers of your canvas print service, then your risk might be reduced.</p>

[kevin_delson]

<blockquote>

<p>Why do you think that an image that just happens to have a building or house requires some sort of property release?</p>

 

</blockquote>

<p><br />What would happen (IF) a photo of some property is sold to Mr. "A"..and then re-sold to Better Homes and Gardens? Mr. "A" claims to have a property release, Better Homes & Gardens publishes the photo based on a good faith claim of the existance of a property release from Mr. "A".</p>

<p>Who will compensate the property owner?</p>

<p>This is still dangerous territory, somewhat similar in it's non-intentional and un-enforceable use of "Creative Commons" licensing.</p>

<p>The OP didn't say the property <em>"Just happened"</em> to be part of the photo. He intentionally took a photo of the house.</p>

<p>Me? If there is ANY possibility this would appear in print or electronic media; I'd get the property release to err on the side of safety.</p>

[mikael_karlsson]

<p>Kevin:<br /> <br /> That's not how it works. Every image I license (and sell) have a clause in the contract that makes it very clear that the client can't re-sell, re-license, or even give the image away for any other usage than that specified in the contract. If a client decides to use an image for anything other than the agreed upon usage all usage rights granted are immediately revoked.<br /> <br /> You'll see similar terms on pretty much all stock-agency sites.<br /> <br /> If the client does something like this, despite what the contract states. the client is not only violating the terms of the contract but what s/he does is clearly their liability since the original contract spells out the usage rights very specifically.<br /> <br /> I have never seen a contract from another pro photographer that gives the client the right to re-sell or re-license images in any way.</p>

[john_h.1]

<blockquote>

<p>somewhat similar in it's non-intentional and un-enforceable use of "Creative Commons" licensing.</p>

</blockquote>

<p>Its not similar at all. Any liability for displaying an image of real property applies whether the displayer owns the image, enjoys a license to use the image or is infringing on someone's copyrights rights in the process. Intent is irrelevant. Enforcability of Creative Commons issues or other matters is irrelevant. </p>

<blockquote>

<p>The OP didn't say the property "Just happened" to be part of the photo. He intentionally took a photo of the house.</p>

</blockquote>

<p><em></em><br>

The intentions of the photographer are irrelevant. </p>

<p>You seemed confused about the use of the words 'just happened' so I will restate the question for you... "Why do you think that an image that has a building or house in it requires a property release?"</p>

<blockquote>

<p> Who will compensate the property owner?</p>

</blockquote>

<p><em></em><br>

Assuming, merely for discussion, the use was compensable, the liability to the property owner attaches to whoever actually displayed the image in the improper manner.</p>

[Spearhead]

<p>Mikael is right. Sub-licensing isn't an issue with stock. In fact, terms are so tight that usage generally is licensed by media type (print, digital, billboard, etc.) to the same organization. Anyone selling to stock agencies or selling stock themselves should be familiar with these terms.</p>

<p>In addition, to add to John's points, there doesn't appear to be any case that resulted in damages against a photographer for not having a property release so far. The only case I can find that has anything to do with photography and a property release went in favor of the photographer, it's the College of Charleston Foundation vs. Benjamin Ham. The court found for the photographer on both conversion and privacy. This all happened in spite of the fact that the photographer was trespassing when he took the photograph. The photographer did settle on the issue of trespassing, but the photography issues were separated from the trespassing. It was a terrific victory for photographers.</p>

[kevin_delson]

<p>Mikael,</p>

<p>The OP is not a professional, is not in commercial photography, does not license his images and probably never has so far.</p>

 

<blockquote>

<p>"Why do you think that an image that has a building or house in it requires a property release?"</p>

 

</blockquote>

<p>John, I'm not confused about this..nor did I say in any of my responses a release was legally necessary; it is not.<br>

Here is what I said in case you are confused</p>

<blockquote>

<p>Me? If there is ANY possibility this would appear in print or electronic media; I'd get the property release to err on the side of safety.</p>

</blockquote>

<p>Are there situations in photographing a property when a release is needed? Of course there is. Disney's Magic Castle for instance. You can photograph all you want, but you can NOT sell the images as the Magic Castle is Copyrighted AND trademarked.</p>

 

<blockquote>

<p>attaches to whoever actually displayed the image in the improper manner.</p>

</blockquote>

<p>True, but you above all others John should know of the "empty chair" approach with attorneys IF a litigation ensues. They will go after everybody and anybody...Good grief, my dog would probably get named.</p>

<p>I did a photo book on Indiana barns some time back. I went to great lengths to get a prop rel from every owner. The book made some money. How is this different?<br>

I didn't shoot these barns for self promotional reasons, nor did I "assign" and inference to the structures, nor did the images "endorse" anything other than the beauty of a bygone era.</p>

<p>I maintain, when in doubt, I will always err on the side of financial insulation, and in this case, a property release.</p>

<p>I brought up creative commons for the OP in case he never heard of it.<br>

If he licenses his work in that structure, he could very well open himself up to a suit down the road....where it IS relevent is that property releases don't travel well in creative commons.<br>

Another subject for another time perhaps.</p>

<p> </p>

[mikael_karlsson]

<p>Kevin,<br /> <br /> You can license images of Disney's Magic Castle (or anything else Disney for that matter) for editorial usage with no releases with no problems. If the photos are sold for money or not makes no difference. The same is true for model releases and editorial use. The insides of a book is typically seen as editorial use in the US. I work with some of the big national book publishers than license my unreleased images of arrests, drug busts, traffic accidents, inmates in prison etc for use in books all the time. Releases, of any kind, is never an issue. If truly needed I'm pretty sure that the legal departments of these big publishers (McGraw-Hill and Pearson Education just to name a few) would demand releases.<br /> <br /> Selling "fine art" prints is generally viewed as a bit of a gray area between editorial and commercial usage. Since every situation certainly can be different, I'd recommend checking with a local attorney if you're so inclined (not specifically you Kevin but rather "you" in general).<br /> <br /> Besides, a release doesn't make you "suit-proof". It just makes it a little harder for the complainant to win in court is all.<br /> <br /> In 20+ years as a professional I have never bothered with releases and I've never had any problems. But, that's just <em>my</em> experience as it relates to <em>my</em> particular situation.</p>

[Spearhead]

<blockquote>

<p>where it IS relevent is that property releases don't travel well in creative commons.</p>

</blockquote>

<p>Please cite one case on property release that was settled in favor of the property owner. This excludes trademark issues, since that obviously wasn't an issue for the OP in this thread.</p>

[john_h.1]

<blockquote>

<p>I'm not confused about this.. ...Are there situations in photographing a property when a release is needed? Of course there is. Disney's Magic Castle for instance.</p>

</blockquote>

<p>You were confused because your comments showed that you thought the question addressed issues that it did not address, namely, the photographers intentions. Now you are confusing it with other issues again. The question is directed to somone who seems to think a release is needed when someone sells image that has real property in general and not just in limited cicumstances such as the type you describe. In your scenerio, the property rights arise from legal criteria above and beyond the fact that there is a building that someone owns in the image. I will rephrase the question to the author, yet again, for your benefit...</p>

<p>"Why do you think that any image sold that has a building or house in it requires a property release?"</p>

<p> </p>

[craig_gillette]

<p>The issue isn't selling the picture, which if taken from the sidewalk, isn't a legal problem in the US (notwithstanding Google pushing the matter such that a variety of governments are looking into ways to restrict something otherwise not previously restricted for the most part). Nor is it selling something that incorporates someone else's trademarks in a competing product.</p>

<p>However, it is wondering if you can use an identifiable (to a specific owner) piece of property to promote your own business activities. The answer, from me, is you'd probably get away with it but might spend a lot of money to do so. I say that because there are a lot of people who caveat their answers with not knowing of any cases where identifiable property was used (as opposed to an identifiable individuals) in a commercial manner. However, not knowing of a case is different than there not being any cases, and since you aren't a popular professional race car driver with a well known car, and you aren't creating a very similar looking car for your ad, the specifics may not apply anyways.</p>

<p>But, from a business standpoint, how will you answer the questions, "Where did you get these pictures?" "Will you use my house in your advertising?" The pictures you see are found "art." Likewise, if you get permission, even if not necessarily legally needed, then you can have pictures from happy customers and good references and you won't have to dither about using a potential customer's home before having a sale and a happy customer. I wouldn't expect everyone to necessarily appreciate or like using their home promotionally. It's an avoidable problem.</p>

[john_h.1]

<p><em>not knowing of a case is different than there not being any cases</em><br>

<em></em><br>

This is an interesting comment because it seems like there is are increasing suggestion that people obtain property releases, despite a scant history of people needing them, 'just to be safe'. I don't know if that is an actual trend or it just appears as such. In any event, my prediction is that these frequent suggestions that one should get property releases, in general, will one day lead to a self fulfilling prophecy. As more people are hit up for "permission", notions about permission being needed will grow. This is how emerging case law and even statutory changes happen. It tends to follow societies evolving norms.</p>

<p>I don't tell people not to err on the side of cautioun. Hopefully concepts of caution don't lead to paranoia however.</p>

[craig_gillette]

<p>I'd suggest that the impetus to get property releases is driven to no small extent by the desire of stock agencies., etc., to minimize potential problems and maximize sales potentials in as many different locations as possible. That seems to drive the ASMP advice in some ways. This same desire to achieve maximum universal sales potentials is driving a fairly uniform approach to releases covering images of individuals when it comes to the strictest privacy/publicity requirements of the various countries whether or not the requirements are the same or anywhere close to as strict in the photographer's home country.</p>

<p>Realistically, I'd expect it's a matter of time, in the US anyways, that an identifiable property image will be treated like an identifiable person image when it comes to "commercial" uses. I'm pretty sure we are already doing so when it comes to "negative" editorial applications. Would a newspaper print a file picture of a random identifiable home or business to illustrate a story on prostitution, drug dealing? So I'm not sure it's a good idea to use an identifiable property item commercially without permission either. It may be legally possible now but laws and precedents can change.</p>

<p>When one considers the row stirred up by Google's display of street level views, to push to go farther and use the same sorts of shots commercially seems even more likely to generate problems.</p>

[john_h.1]

<p>That's the stuff trends are made of.</p>