Selling Photos taken in public garden

[ccommins]

I have some pictures that were taken in a public garden and also a private garden open to the public. I went to their

websites, it states clearly that you can not sell any photos taken in these gardens, never saw a sign in the garden.

The pictures are some of my best. Can they stop me from selling these photos.

[matthew_newton]

<p>For the private location, absolutely. For the public location, no idea. Was the public location owned privately, or are we talking a real public gardens (IE owned by the city/county/state/federal gov't)?<br>

To the best of my knowledge if the images were taken on private property, they can in fact sue to prevent sale if they wish. If it was publicly owned property, they can't unless it falls in to select catagories (military bases in some cases, federal office space, etc).</p>

[Matt Laur]

<p>Are the shots in the private garden readily identifiable <em>as</em> that private garden? Are they shots <em>of</em> the garden, or of, say, a head-and-shoulders portrait that happens to have a bank of flowers out of focus in the background? <br /><br />And: are you talking about selling a print as fine art, or are you talking about placing images for stock sales? <br /><br />Need some more to go on, here.</p>

[kevin_delson]

<blockquote>

<p>it states clearly that you can not sell any photos taken in these gardens</p>

 

</blockquote>

<p>Can you be more specific how this notice reads?</p>

<p>1) Many venues prohibit the use of photos right on the admission ticket.</p>

<p>2) "by any other name..." If you photographed a Rose, sure you could sell it w/o any sort of release.</p>

<p>3) If you photographed a arrangement of flowers specific to those gardens, you are prohibited based on the notice you mentioned.</p>

<p>4) If you did a portrait session in the garden, sure you can sell those as portraits; not "Flower garden Pics."</p>

<p>Need more specific info or a link to the web site so we can all read the disclaimers.</p>

<p>4) </p>

[mikael_karlsson]

<p>Carol:<br /> <br /> Like Matt says, selling for what/as what? It's the usage of the photos, not necessarily the photos themselves, that determine if a release is needed or not.</p>

[john_h.1]

<blockquote>

<p>For the private location, absolutely.</p>

</blockquote>

<p>No. It is not absolute.</p>

<p>A property owner can control what takes place on their property but, if someone takes pictures while there, the owner cannot prevent their display absent some contractual basis or independent legal grounds. If photography were banned as a condition of entry or continued presence (as opposed to after the fact claims) then they might be able to obtain an injunction or other remedy. There may be other legal grounds to prevent a display or sale but not solely because an image happens to be photographed while the photographer is on private property.</p>

<blockquote>

<p><em>If you photographed a arrangement of flowers specific to those gardens, you are prohibited based on the notice you mentioned.</em></p>

</blockquote>

<p>Sure, if one needs to visit the website in order to visit the property. Otherwise, there are going to be serious lack of notice/lack of contract issues.</p>

<blockquote>

<p>If you did a portrait session in the garden, sure you can sell those as portraits; not "Flower garden Pics."</p>

</blockquote>

<p>Actually it will depend on if the validity of any claim that photographs obtained by visitors while on the property cannot be sold. Often people want portraits with a certain background and a property owner, taking the proper steps, can prevent such images from being taken on their property.<br /> <em><br /> </em></p>

[ccommins]

I would like to sell them as fine art, not stock photograph. Mosty statuary in the garden.

[sarah_fox]

<p>Statuary, as in statues? That raises another issue. The sculptures themselves would be copyrighted. You can photograph the sculpture without permission under "fair use" provisions of copyright law (assuming in the US, yes?), but only if the work is transformative in some way or editorial in nature. Our legal eagles here can address those issues better than I can, but there's also a lot of good info on the web.</p>

<p>If you decide you're within your rights and are comfortable using the photos, then do so. If not, then you might consider approaching property owners and/or copyright holders for permission, perhaps in exchange for some nice prints and/or limited usage of your photos on their website for promotional purposes -- with attribution and a link to your own website, of course!</p>

[bobatkins]

<p>Actually you can photograph the statues without permission anytime you want, you are just restricted on what you can do with your photographs. You may need to look under the "derivative work" sections of the copyright code. If you just make a photograph of the statue and sell it as a photograph of that statue then it's not new work and you'd need the copyright owner's permission for most uses (and certainly any commercial use, where "commercial" is related to trade). If your photograph is sufficiently different and incorporates someone else's copyrighted work in a way that makes your photograph sufficiently different from the original to constitute an original new work, then you do not need the original copyright owner's permission. Defining what's new and original and what's just basically a copy is where the courts get involved</p>

<p>There have been lots of law suits about music in this area. Is a new song that uses parts of an old song a new work? Answer: It depends...</p>

<p>I think the bottom line on this one is that you probably shouldn't try to sell these images, especially given the website's notice. Whether you could "probably get away with it" is another matter. I suspect you might be on shaky ground if you try to sell a picture <em><strong>of</strong> </em> a (copyrighted) work of art <em><strong>as</strong> </em> a work of art. Just think of the example of selling a photograph of a painting. A statue is different in form from a painting, but I think the same principles would apply. How would you feel if someone tried to sell photographs of your photographs?

[steve m smith]

<p>Would it not also depend on the age of the statues? If old enough, the copyright may have expired.</p>

[ccommins]

Thank you everyone for your suggestions, I believe I will just forget about selling the prints. I inquired about copyright and you have to get written permission from the artist, heirs etc. It's just too much hassle.

[bobatkins]

<p>The Mickey Mouse Protection Act extends copyright protection to the author's life + 70 years for individuals or 120 years after creation for corporate works (or 95 years after publication). If it was published before 1978, copyright expires 95 years after publication.</p>

<p>It keeps getting extended each time Mickey Mouse is about to enter the public domain. Mickey appeared in 1928, so he's safe until 2019, though I'm guessing that sometime around 2018 it will get extended again...</p>

[mikael_karlsson]

<p>Carol:<br /> <br /> You can always license the images for editorial usage in newspapers, magazines, books etc. No releases needed for editorial usage in the US.</p>

[john_h.1]

<p><em>No releases needed for editorial usage</em></p>

<p>The issue really isn't about releases and particular uses. Its about whether the images can be sold no matter what type of use.<br>

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

[mikael_karlsson]

<p>John:<br /> <br /> Yes, but the answer isn't really black or white as you know. While the images in question couldn't be sold for commercial use these same images can indeed be sold for editorial use. Maybe I'm just clouding the issue and if that's the case I apologize.</p>

[john_h.1]

<blockquote>

<p>these same images can indeed be sold for editorial use.</p>

</blockquote>

<p>If the prohibition is valid, such as if there was adequate notice that permission to be on the property is contingent on not selling any photographs (i.e contract formation), then we don't ever get to any question of commercial use vs. editorial use. It doesn't matter what the use is because ALL sales in such an instance would be prohibited.</p>

<blockquote>

<p>While the images in question couldn't be sold for commercial use</p>

</blockquote>

<p>On what authority? Is there some sort of trademark in the images that you know of? Does the physical property enjoy privacy rights like humans do now? There is a slowly growing trend towards photographers obtaining model releases for property shooting because people are claiming they are needed (like here) and then the property owners start to think one is needed. Over time these expectations start to become recognized as having some actual legal basis. A self-fulfilling prophecy in a sense. Supposing, for discussion, the law has reached this far. What of a mere close up of a flower as a background or montage image in some advertisement. How could that fall under such a sweeping "couldn't" use standard since the location is not discernible?</p>

<p>So yes, the answer isn't really 'black or white' but in a different way.<em><br /> </em></p>

[bobatkins]

<p>I think there's a growing CYA situation where photographers are getting releases and publishers are requiring photographers provide such releases, even when they aren't required, <em>just in case</em> someone tries to bring a law suit. As John comments, this may be a self fulfilling requirement. If publishers demand a release before buying an image, it doesn't matter if it's legally required, the photographer has to get it or lose the sale.</p>

<p>ASMP have a page on property releases - http://asmp.org/tutorials/using-property-releases.html. Even they say " <em>ASMP has never seen a statute or a legal case that requires a release for property</em> ", but again that doesn't stop publishers requiring one for CYA purposes.</p>

[craig_gillette]

<p>People point out that small sentence but often fail to point out that the ASMP recommends getting the releases, even if only to provide for enhanced marketing opportunities. Besides, the ASMP needs to look harder. If I can find a case where "property" - an item as opposed to an individual's own image - was the crux of a successful "publicity" infringement case, they should be able to. Besides, "statues" or cases will likely not require a "release" but they can require permission. They typically don't detail the form the permission must take.</p>

[mikael_karlsson]

<p>John:<br /> <br /> I was just going on what the OP stated in regards to the photos and commercial usage. Heck no, property has no rights at all. Besides, it'll be no easy task to get a house or a statue to actually sign a release...<br /> <br /> I think you and I are basically saying the same thing, I just expressed myself clumsily. I completely agree that there is a growing trend, not only in people asking for model releases for property, but also requesting releases when none are needed. This naturally isn't good from a stock photographer's point of view since - like you say - it'll lead to more releases being requested, when not needed, by publishers etc.<br /> <br /> I'm fortunate enough that the publishers I work with doesn't request or require releases. Even for sensitive subjects such as crime, drugs, vice, etc. It is my experience from my limited - 12 years - experience of working directly with US publishers that the larger publishers are much more likely to know their rights and don't require releases for editorial usage.<br /> <br /> Bob makes an important point though and I too see this with smaller publishers - releases being requested even when not needed. Again I'm very fortunate but I haven't had any instances where a publisher requested a release, didn't get one and then decided not to use the image(s). Much of what I shoot can be hard to get which explains some of it, but when I talk to publishers asking for releases and explain to them about editorial usage most admit that they're asking just to CYA and that they're happy to use my image(s) with no releases.</p>

[alec_myers]

<p>Can someone confirm categorically that a photograph of a sculpture is considered a derivative work in the USA, please?</p>

[kevin_delson]

<blockquote>

<p>Can someone confirm categorically that a photograph of a sculpture is considered a derivative work in the USA, please?</p>

 

</blockquote>

<p>Where copyright of a derivative work is concerned, the answer is <strong>no</strong> .</p>

<p>Many of us have seen time and again where these cases make there way into the court sytems with different results.<br>

The judges in such cases are often not informed, but make decisions based not only on the "law" but their gut instincts. I suppose that is part of (Judging).</p>

<p>Copyright law sad to say, is written for lawyers; not photographers.<br>

Conversely, photography is a visual art, photographers are artists, lawyers and judges usually are not.</p>

<p>Black & white simply does not exist where derivative use is concerned; it is far worse interpreting "fair use."</p>

<p>Even when a decision is handed down, how often do we see it overturned in a higher court?..Often.</p>

<p>I alluded to a situation I was embroiled in some months ago.<br>

W/o boring everyone with the nitty gritty..here are the basics:</p>

<p>1) Photograph of a television program taken from the television itself.<br>

2) Image was (Adob-A-Tized) to death.<br>

3) No recognizable people in photo.<br>

4) I registered the work as "Derivative"<br>

5) Network Station filed suit when they saw the image for sale.<br>

6) Network dropped suit after consultation with their attorneys.</p>

 

[craig_gillette]

<p>http://www.photoattorney.com/?p=1056</p>

<p>I'd infer from this that it's not a cut and dried answer. Might be a good place to start looking.</p>

<p>I'd also think that for photographers, the use of a photograph as the basis for a work in another medium would be important as well.</p>

<p> </p>