Reader Question: Licensing Images Shot On Private Property

- - copyright

A reader asks:

Hi Rob,

I’m an architectural/interior design shooter for the last 15 years and I’m still working in 4×5 film.

I’ve been approached by a stock company and they would like access to my catalogue of mid to high end residential exteriors and interiors. I’m usually hired by the architects or the designers, seldom the owners and the work has been for the clients “personal portfolio and marketing purposes”

I know I have the “copyright” because I was paid to photograph the residences with owners permission.

But, if one of the living room shots is licensed from the stock company and the property owner happened to come across “his” living room in a mag somewhere, can he drag me to the carpet and create a litigious tussle or a simple cease and desist.

I’d like to finally get a wee bit of money for potential stock usage.

I asked The Photo Attorney, Carolyn E. Wright if she could give us general advice on licensing images shot on private property for stock. Here’s her answer:

 

NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney.

When considering whether you need permission of the owner to use photographs of the owner’s property (often referred to as a “property release”), you need to analyze what claims the owner can make against you.

Assuming that the property is in the United States, any potential claims will based on state laws, not federal rights. So the claims may vary, depending on the laws of the state where the property is located. However, each state’s laws are similar.

While some buildings are protected by copyright, the US Copyright Act provides an exception for photography of architectural works:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. See 17 USC 120. Therefore, you are allowed take and use exterior photos of a building or home when it is located in and is ordinarily visible from a public place. A home owner would not have grounds to keep you from photographing and using the photos for any purposes, including commercially. Such was the case when a California homeowner complained about photos of his home used to advertise mortgages: http://www.photoattorney.com/is-a-property-release-required-for-use-of-photo-of-house-for-an-advertisement/

When taking photos inside property, you are subject to trespassing laws. Specifically, your presence on another’s property is pursuant to a “license” to be on the premises. For example, when you invite someone to your home for dinner, that invitation does not extend to a “license” to drive your car or stay overnight, but would be specific or implied consent to sit in your living room and at the dining room table. At any point, however, you may revoke the license and ask your guest to leave your premises.

The ultimate question is whether the owner or manager of the property has given specific or implied consent for the photographer to take photographs there. You cannot misrepresent your purpose to enter a property and then take photos. For example, in the court case of Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999), ABC news reporters from the show, “PrimeTime Live” obtained jobs at several stores under fraudulent pretenses and then proceeded to surreptitiously film Food Lion’s unsavory food handling practices. After the program aired, Food Lion successfully sued the producers on the charge of trespass. However, if you are on the property and the owner sees but doesn’t stop you from taking photos, you have implied consent to do so.

If you have consent to take photos of property, then the issue is whether the owner has a right to restrict the use of them. An owner would be able to stop the use of the photos if the photographer and owner had an agreement that the photos wouldn’t be used in certain ways. If the photographer uses the photographs otherwise, then the owner would have a breach of contract claim.

Absent a trespass claim or contract regarding the use of the photos, no court has recognized a claim for using photographs of private property. Some have argued that a homeowner would have a claim for conversion, trademark infringement, or violating the right of privacy. But, for example, a South Carolina court found that The College of Charleston Foundation had no claim against Benjamin Ham for invasion of privacy or conversion for his taking and selling photographs of the College’s property, known as the “Dixie Plantation.” Significantly, the court noted that if Ham had taken the “Plantation Road” photograph from off the property with some sort of high-magnification equipment, the Foundation would have no cause of action for trespass, either. http://www.photoattorney.com/update-on-the-lawsuit-against-benjamin-ham-for-photographing-private-property/. Neither did photographer Charles Gentile violate the Rock and Roll Hall of Fame’s trademark for selling posters of the museum. http://scholar.google.com/scholar_case?case=8775495145817703769&hl=en&as_sdt=2&as_vis=1&oi=scholarr. Likewise, a German court recently upheld the right for a photographer to license photos taken of property at a park: http://www.photoattorney.com/german-court-finds-no-violation-for-photographing-and-licensing-photos-of-property/. A subsequent owner of property would not be able to prevent a photographer from licensing photos that a photographer had taken, as no other claim would bar their use.

In sum, while some owners may whine about seeing photos of their property used commercially, the law won’t support their complaints.

Copyright Carolyn E. Wright, Esq.

There Are 24 Comments On This Article.

  1. Michael Miller

    I was under the impression that a recognizable building does have rights they can exercise to restrict use of images of there property if that building is not part of the overall skyline. E.g. if the focus is of that building and not any adjacent ones, they can restrict use and ask for royalties. Is that not the case? I am near Detroit Michigan.

  2. By the way, most owners will happily sign an unconditional release during the photo shoot. Problem (mostly) solved.

  3. I ran into the same issue.

    Ultimately it matters nothing of what you can bring to the table to justify not having a Property Release.

    If the Agency requires a Property Release, then it is a moot point.

  4. Yes, legally that all sounds right and would probably work in New York, but if the property owner sees pix of his living room in a magazine she didn’t expect, she is going to be on the phone screaming at the architect who will in turn call and scream at you. You’ll have to double up on your therapy appointments till you get over the trauma, and that’s expensive.

    So from a business relationship standpoint, the best thing to do is figure out how to get the exciting news out to your architect friends that their work may get seen by a wider circle of potential clients. Send cookies if possible. Head off the trouble before it starts by adding a positive spin…

    • That’s so right, and is the kind of thinking that applies to many, if not all, situations. Everyone wants to go straight to what does the law allow, but that should be the last resort for most situations, and hopefully a point you never get to. Even if something’s legal, you can still get sued and be subjected to all kinds of hassle and business ill-will. Sometimes you do have to take a stand, but you should also try really hard to avoid having to in the first place.

  5. Suffice for now to say that I heartily disagree with the suggestions and opinions expressed in the article. There is no excuse not to executed EITHER a location agreement or property release.

    We have handled a multitude of disputes and lawsuits that have resulted due to the lack of one or the other. That is generally why a major ad agency will require such a writing(s).

    Photographers can and do, get sued for ordinary negligence, gross negligence as well as in trademark resulting from the failure to obtain these simple defensive documents. Not every case against a photographer is a copyright or “photo case” per se. Some are “ordinary” like the interior photo displayed the location, code, make and model of the burglar alarm to the public. A kidnapping and mayhem ensued and was at least facilitated but likely caused by the photo’s publication .

    Notwithstanding the above, we have recovered money on behalf of clients resulting from the failure to use such simple forms and have defended persons/companies on the other side of these disputes.

    Protect yourself with a simple property release or location agreement just like the big media companies and ad agencies do. There is simply no reason to risk your life’s savings on believing you did not need a property release just to have a jury disagree.

    • Edward,

      Thanks for chiming in, it’s nice to hear a dissenting opinion—this is an issue that confuses a lot of photographers. It would be especially useful if you could cite a particular case so we could try to understand how an actual court has ruled on this.

      Can you please point out a case (or maybe a couple) where the lack of property release was an important issue?

  6. Michael Hayes

    The reader that’s an architectural/interior design shooter states that they have the owner’s permission to shoot; verbal or written? I am not an attorney, but I’ve worked in the stock photography business for years, and in my experience your reader is in for a world of hurt and cease and desist letters if he or she does not have written property releases.

    For one thing, some commercial users of stock will not touch an image unless it has a written release. And, specific and implied consent from an owner can get quite muddy if it’s not in writing. There is a big difference in letting your architect or interior designer use images of your home for self promotion and marketing, and another seeing your home in an ad for a bargain rate mortgage company in the Penny Saver, or worse.

    At the end of the day the stock company that wants the images would probably make the call to upload a questionably released image, but the reader should be aware that this does not let them off the hook with the owner if things get dicey – and they can. And, if enough cease and desist letters arrive the stock company will probably end up pulling the image(s), anyway.

    Another consideration your reader may want to think about is the impact that using these images for stock may have on any ongoing relationships they have with their clients. While stock has been good to me, not everyone is a fan.

    • Excellent point. I used the stock agency’s failure to obtain a property release to help demonstrate its course of negligence in failing to get a model release. Photographer wrote to agent “not model released, no releases”. Stock agent ran it anyone, photographer and agent got sued by model and the agent was left holding the bag. Our approach was that agent was so dumb and negligent that it failed to even ask for either a model or property release.

      Again, great point.

  7. Jack Reznicki and I will be discussing this topic at PhotoShop World in Las Vegas next week. For now, here’s the disconnect that many lay people are confused by – literally 99% of all legal disputes are resolved well before there is an opportunity for a verdict coming from a judge. Most of our cases of consequence are settled pre or post litigation in such manner so as to keep the terms confidential. No one, nobody has any way of compiling any statistics on the outcomes of these disputes on a state or nationwide basis.

    So while citing to court decisions in cases where the reader gets only the judge’s view of the facts has value, such citations do not accurately reflect the typical and customary disputes which get resolved well before trial. Again, if the ad agency requires it for you to get paid further legal analysis by lawyers or non-lawyers is rather pointless.

    We rarely cite to legal cases as photographers tend to think that “one size fits all” when in fact model release and property release cases are for the most part, matters of state law. Copyright Law is federal in nature and is thus roughly consistent throughout the US. Trademark cases can be heard in either Federal or State courts. Every case is thus specific to a unique set of facts and often to local or state law.

    Photography is a business. A photographer may be responsible for damages caused to a person or business which have may have little to nothing to do with intellectual property or the photographer’s right of copyright. For example, a photographer who negligently exposes a person(s) or business to a foreseeable risk of harm could be liable in “regular” negligence regardless of who may have what rights in the images created at the shoot.

    When shooting real estate, interiors, home decors, businesses, landscaping, art work, sculptures, sensitive security systems, proprietary or secret machines or manufacturing devices and so on it is best to get a property release or location agreement. Michael Jackson’s Neverland location agreement (which ran over 100 pages) was very specific on what could and could not be shot and from which angle(s). The reasons for those restrictions became quite evident after he was sued and charged with inappropriate behavior with children. The onerous agreement protected Jackson AND the photographers who used the location.

    Back to your main question, we will discuss in Las Vegas how not to infringe on a trademark which a building, company or person may possess. Clearly if a store were to open with the name”Empire State Fashions” and prominently used the Empire State Building, it reputation and brand in advertising so as to “trade on” the mark(s) owned, a lawsuit will be filed before day turns to night.

    Photographers are 99.99% of the time not financially equipped to get involved in lengthy and utterly avoidable trademark (or other litigation). If the photographer wins and escapes a judgment, the legal fees will be staggering. If the shooter loses such a case, his/her business will be destroyed.

    Why, why would anyone risk an adverse decision and pay lawyers and have the aggravation of litigation when a 1 – 3 page location agreement or property release avoids these problems entirely? If the photographer loses such a case will those who say these defensive documents are not necessary be there to pay the judgment on behalf of those who followed that advice? Why would an ad agency hire a photographer who doesn’t obtain property releases when thousands of other photographers are ready willing and able to provide them to their clients and agencies as a matter of course? These are “better safe than sorry” scenarios.

    The same people who naively state that you don’t need these docs will also blithely tell you that, “Hey anyone can start a lawsuit these days”. Do you want to play with a helmet and pads on or get on the field naked?

    Quick examples of claims made/photographers exposed because there was no property release:
    1. Photo reveals secret manufacturing process performed by custom made proprietary machine to the world and competitors. Was photographer supposed to be in that location when the shots were taken? Mmmmmmmmm;
    2. Photos taken in front of rich local big shot’s house. Rich guy threatens client that if photos run, rich guy will make sure that his own company ceases doing business with client’s company. Client folds to the pressure and calls photographer telling him that he can’t use the shots and now does not want to pay full price so he gets away with a kill fee of 50% – or client won’t pay and photographer now must sue and explain to a court’s satisfaction as to why he simply did not get the permission of big shot rich guy to use his house in the ad. Judges and juries are “local” and newsflash, frequently don’t decide cases “on the law”;
    3. Photo exposed locations of panic room/cash counting room/medical devices revealing a person’s medical equipment and thus her medical condition which was unknown to those outside of her family.
    4. I know of no lawyer, yours truly included, that could even pretend to know and be able to accurately predict the outcome of every single claim that might be made sounding in invasion of privacy in every state and territory of the United States in the future.

    We could give you another 25 fact patterns just based on cases we have handled over the last 35 years. You don’t read about them because they are resolved well before a judge renders a “legal opinion”.

    We never guarantee an outcome to a client. So if you prefer to ignore our advice to obtain cover paperwork, just be aware of the risk you are unnecessarily running. Think about how you will explain to your spouse just why you are paying someone a big judgment out of your life’s savings because you chose not to use a 1 page form .

    • Thanks Edward,

      It seem that a lot of this risk of liability will happen whether the use is editorial or commercial. Revealing a secret manufacturing process in an advertisement doesn’t seem more damaging that revealing it in a newspaper. Do you recommend that journalists ask permission and get releases also?

      • The case I referred to involved a photographer shooting in a factory for the purposes of doing providing editorial images for a magazine article on a failing government subsidized local business. There was a hotly dispute issue as to where the photographer was allowed to be on premises and just what he/she was allowed to photograph.

        I have written and will be lecturing to the ABA in January on AG GAG bills which seek to criminalize photographing questionable farm, food handling and animal treatment practices taken from public or private locations. A release is always preferred by frequently impractical or impossible to obtain for a classic photojournalistic situation. As a practical matter, few photojournalists who are shooting breaking news events can ask or get them. On the other hand, a slower paced , more controlled piece involving several days of shooting typically allows for the execution of property releases or location agreements.

        • Edward, I’m very familiar with the ag-gag laws—I shoot a lot of agriculture work including contracts for the USDA and I’ve followed the issue closely. I’m not sure how that relates to this question though.

          My question is if I am allowed on a premises to shoot photos or I’m shooting from a public space—in other words I’m not trespassing (or breaking ag-gag and similar laws) —does the owner of the property have a legal right to control how I use the photos after the fact. I think that’s what the original question asked.

          Without doubt having an agreement is great and we all do get (or should get) agreements with out clients. But as Jason points out below it’s not always our clients we are dealing with. Cases like Gentile and diCorcia show examples where having an agreement isn’t possible or where we feel it’s our right to use work regardless of how the subject or property owner feels. Does the law protect us in these situations. If so (or if not) where is the line?

          • There is unfortunately no “one size fits all” answer to your eminently logical question. “The” answer depends on the state in which you performed your work and the laws and/or regs applicable in that state. Part – and I emphasize the word “part” – of the reason I have fought against these laws is that there is virtually no way a photographer (not to mention an attorney) could as a practical matter know what can or can’t be done from state to state. Lawyers are typically licensed in just one or two states and rarely, very rarely can possibly know which of these restrictive laws are applicable in a given state. As a shooter and a layperson, you might be called to work in 4, 5 or 15 states in the coming year.

            My opinion is that most aspects of the AG GAG bills are blatantly unconstitutional. That is my opinion which is influenced by my understanding of the law and my particular prejudices. My advice to a client needs to take precedence over my opinion and would differ from state to state.

            Regrettably I am unable to give you the peace of mind and assurances that you seek and (in my opinion) are entitled to. Politicians who don’t know a lens cap from from a power steering pump diaphragm (true story) and nonetheless writing the laws you have to live by. They are in this area unworkable, absurd, frequently unconstitutional and serve to chill investigative journalism whether by photo or word.

            Large, well funded corporations can afford to push the envelope and risk getting sued in the process if there is a potential upside. Photographers, illustrators and independent journalists can rarely, very rarely run those economic risks.

            It is a bad situation which will likely get worse. Mr. Reznicki and I do what we can to keep shooters out of trouble and at the same time warn politicians of the stupidity of their acts BUT photographers don’t lobby effectively and often can’t compete against the well paid lobbyists from agra-business and related interests.

            So protect yourselves at all times. Whenever possible use a location shooting agreement or property release. The people who tell you that such documents are not needed don’t dare run the risks in their own practices or businesses that they so willingly tell you to run.

    • Mark is asking the right question and it’s a difficult one to answer using Edward’s logic because his argument should apply equally to photo-journalists, even though we have a long-standing tradition that says otherwise. If we take Edward’s advice, then we accept the idea that our best course of action as a group is to avoid risk of unsound lawsuits rather than stand up to them.

      There are plenty of people and organizations that would like the ability to censor journalists by means of legal threats. It would be a boon to them if journalists needed to seek releases from their subjects to avoid risk. But they don’t. The reason they don’t isn’t magic, it’s that when people have tried to use money and the threat of lawsuits, journalists have stood up for themselves and this created a body a precedent and common law that now protects them.

      The simple fact is that there is no statute, common law, or precedent that Edward can cite that contradicts what Carolyn has stated. His only argument is that there have been disputes, of which we don’t know the results. But there have been disputes over everything. If we follow Edward’s advice, we would seek written liability waivers for every interaction we have with another human being. I’m sure this would suit lawyers just fine, but I don’t want to live that way.

      I agree with Edward that when an agreement is easy to reach it makes sense to do so. But it’s not the easy cases that we worry about, it’s the other ones like the original poster’s. There are many cases, such as Charles Gentile’s of Rock and Roll Hall of Fame fame where a 1 page form isn’t going to help. The Rock and Roll Hall of Fame likely would have denied permission to use the photos, not based on any statute or tort, but because he would compete with them.

      What would your advice be to someone like Charles Gentile, Edward, when a company asserts rights that are not supported by law? Roll over to avoid the conflict? Is that your advice to the photography community as a whole? Give in when power and money want to coerce them based on the threat of expensive, unfounded lawsuits rather than standing legal principle. As a group if we give up this ground, we won’t get it back.

      • You ought read my articles or simply Google the term “AG Gag Bills”. These are state and federal statutes which criminilize the photographing of farms, ranches, food processors, food handlers, slaughter houses, food retailers and distributors. Whether the photographer was standing on public or private property is often irrelevant. Additionally 43 states have or are debating drone laws. It is illegal to photograph from a remote in public air space using a drone in Texas and in some other states. You may photograph police activity from a drone so as to ensure that the public has a right to know how their servants are acting.

        So before making sweeping statements about all 50 states, we suggest you start by just looking at the passed or pending “AG Gag” bills about which Mr. Reznicki and I have written previously. Some of these laws would make it a crime to photograph a farm while standing on a public street or legally sitting in a helicopter or using a $300 photo equipped drone.

        An article about drones will be appearing in our blog thecopyrightzone.com shortly. Final point here – our clients who are photographers of every conceivable specialty from event, celebrity, sports, photojournalists, portrait, scientific, beauty and fashion, wedding and so on, manage to get these releases and stay out of trouble. If you wish to tempt fate that is your call.

        If you go to a casino or race track you know the odds and are free to bet 2$ or $222,000. In those cases there is an upside to your win which is known to you pre-bet and your down side is locked in at the amount of your bet. You decide to take your chances…or not. In these situtations if you want to play without a helmet there is virtually no upside and the downside may be so large you can’t even determine it going in. The beauty of American is that a person can choose to live dangerously – WHY someone would in these situations is beyond me. In the time it takes to think about getting a release, you could have had one signed and in your pack pocket.

        Funny, I’ll bet you pay for and carry all forms of insurance for events that are unlikely to ever occur but you seem to recoil and getting this free insurance. The approach is illogical and virtually unique to creatives and artists.

        Finally, I have sued and actually litigated on behalf of solo photographers the following defendants: NBC, ABC, CBS, NYT, Gannet, Corbis, Getty, The Catholic AchDiocese of NY, Samsung, Nike and so on. The companies we sue are always many times better heeled than our solo clients. Invariably those defendants who take advantage of photographers, models, stylists and the like are huge companies. We sue them when necessary and appropriate. We have never had the pleasure of meeting and I trust you have not seen any of our videos or attended any of our seminars, but the notion that I would suggest creatives unnecessarily “roll over” gave my wife and the folks in the office here quite a chuckle.

        • No laws relating to the need for property releases???

          Try starting by looking at these with the understanding that there are dozens upon dozens of others both similar and disimilar.

          Stunning Ag-gag Bill News | Ocean Robbins – Huffington Post
          http://www.huffingtonpost.com/…/whats-the-real-price-of-a_b_3705201.html‎
          Aug 5, 2013 – Amy Meyer wanted to see for herself where her food was coming from. But in the state of Utah, she discovered, that was against the law.

          Ag Gag Bill – Huffington Post
          http://www.huffingtonpost.com/news/ag-gag-bill‎
          Martha Rosenberg. Animal rights activists, with the help of miniaturized cameras and the Web, have forced farm animal treatment onto the national front page …

          Ag-Gag Bills – The Humane Society of the United States
          http://www.humanesociety.org/issues/campaigns/factory…/fact…/ag_gag.html‎
          Agribusiness has introduced anti-whistleblower or “ag-gag” bills in numerous states aimed at making whistleblowing on factory farms essentially impossible.

          2013 Legislative Season Ends with ‘Ag-Gag’ Bills Defeated in 11 …
          http://www.foodsafetynews.com/…/2013-legislative-season-ends-with-ag-gag-…‎
          Jul 30, 2013 – It took a time-killing debate in the Indiana General Assembly and a game-changing veto by Gov. Bill Haslam in Tennessee. And only when …
          ‘ag-gag’ bill – The Raw Story
          http://www.rawstory.com/…/north-carolina-chamber-of-commerce-says-ag-ga…‎
          May 28, 2013 – The North Carolina Chamber of Commerce claims animal rights activists are misrepresenting a bill regarding the filming of animal cruelty at …

          Then go to thecopyrightzone.com and put “ag-gag” in the search box for several of our past articles on the laws and statutes some people seem to insist don’t exist. Two of those articles on the site are listed below:

          See the Ag Gag Article on NY Times Front Page April 8, 2013 – 4:37 pm

          Ag Gags for Carnivores, Vegetarians, Vegans and Yes, Photographers

          Numerous federal, state and local statutes and regulations prohibit the photographic of countless government owned or run facilities including those which are national security, power grid or law enforcement related. They make it a crime to create a photo if shot from a prohibited area. So there are only a few hundred laws and statutes which in effect require a property release or a location agreement. If you would prefer to retain an attorney or get the ACLU to take on your case you certainly have that option but to claim the laws and regs don’t exist because “there is no legal case” is blatantly misleading.

          • Answering a direct question I received confidentially off line:

            Mr. Wright states, “In sum, while some owners may whine about seeing photos of their property used commercially, the law won’t support their complaints”.

            There are indeed many cases which we have taken and would take where the law does support such claims. Again, drone and AG GAG bills are just two types of cases where various state laws will support the claim of a private property owner whose property was photographed and employed (or even not published) without their consent. Read the NY Times article and the citations to legislative bills on on our website or set forth above.

            I do not agree with Ms. Wright’s view and suggest that merely reading the articles in the lay press referred to in my posts and articles ought be sufficient to establish in anyone’s mind that maybe, just maybe there are plenty of viable lawsuits out there. From personal, real life experience I know that there are and have received checks for clients and seen still other payments exchange hands.

            Your question is fact sensitive and you need to see an attorney who actually litigates in the state in which you live and where these events occurred. I can’t/won’t guess at what he/she will tell you as I am not licensed to practice in that state.

  8. @ Andrew, sometimes it’s 90% Jedi mind trick. Other times, it may be a bit of negotiation. But eventually I realized that I was more scared of my own release than the property owners were. So now I just ‘require’ it to do the shoot. Every time. So far, no problems.

    @Richard and Tim. Exactly!

  9. Jack Reznicki

    A clarification on one comment made originally:
    “I know I have the “copyright” because I was paid to photograph the residences with owners permission.”
    Your copyright is automatic as soon as you take the photo. Doesn’t matter if you’re paid or not, with permission or without. You create it, you own it (unless you’re an employee, doing work for hire, or signed away your copyright).
    What you can do with the photo is another subject and what has been discussed here. But do not think that owning the copyright eliminates someone else’s personal or property rights.
    Owning the copyright and being able to use an image are two separate issues.

  10. Charles Billings

    ROB –
    Thank you for making this discussion possible.

    EDWARD & CAROLYN — Thank you for sharing your knowledge.