When do you need a Release?

[deaner1971]

Andy,

Your mention of releases reminded me of a question I had and never got around to asking anyone.

It is my understanding that you need to get a release from the owner of any easily recognizable private dwelling you photograph. I know that isn't true if you are photographing a city and there are dozens or hundreds of buildings visable but I don't know what the criteria are for needing a release.

Is it if the building is THE subject? Is it if the building is A subject? What about non-dwelling man-made subjects (e.g. statues, fences, ponds, etc...)?

I figure we have convered all of the other aspects of photography with our team or resident experts, why not legalese?

[Andy]

Hi Dean: I think there are two different issues here. One is the Intellectual Property issue and the other the issue of rights to privacy.

On a "recognizable" building, the only issue I see is whether or not there may be some "trademark" infringement. My favorite photograph of Chicago involves the NBC "peacock" prominently on the NBC building in the background. As I understand it, I can photograph that building and use the photograph for my own personal enjoyment (it hangs in my office), or for other permissible purposes that would not be a trademark infringement. As soon as I use it for some type of financial gain, or in a way that might be deemed "published," I have a problem. I may even have a problem using it as an illustration here, but I'll take the chance . I am in no way asserting any use or ownership or benefit from this trademark, other than to illustrate my point. What struck me about this image was the reflective, gold, metallic looking "planter" base in teh foreground. The trademark isn't prominent in the photograph. However, I think it is enough to prevent me from selling this image without the permission of NBC. Think they'll give it? Otherwise, I don't think there is a problem from an IP stand point for a "recognizable" building.



The other issue is more difficult. It addresses whether a person has a right to privacy in their "recognizable" home (same issue with "faces" but the application of the law is not uniform). The basic rule is that if it is in plain sight and you are photographing from a public place, there is no right of privacy. However, that rule is not cast in concrete. Nor does it necessarily apply to a "face" in a public place. Much has to do with what common sense and a persons "expectations" might tell us. Would we expect to have our face photographed and used or published without our permission anywhere? Probably not, and best practice is to always get a release in this case. Property is a tougher call. Where it is photographed from and what part of the image it comprises (i.e., is it the image, or a small collateral part of the composition) will make a difference, as will circumstances). I don't think you will find any clear-cut law on this if you look at the decided cases.

One last point -- IP law (copyright/trademark/patent) is mainly a Federal Law. Privacy rights are state law based and you really have to look at the law in every individual state.

[deaner1971]

And one final issue is art versus news. It is my understanding that I do not need anyone's permission for "editorial" photos which are photos used for news related purposes. This is why, at times unfortunately, you see photos of personal anguish where you know that the person was not then approached for a waiver. I believe this is also the legal interpretation that allows the activity of paparazzi because a celebrity's very life is considered "news worthy".

I mention this because I do believe that it gives you greater latitude if the picture is question is one that you sell to a paper or a magazine rather than one you plan to sell via a website.

I guess I am wondering about pictures like this one:



I shot this from a public street and the location is not obvious but this individual's home is definitely the subject of my photo. I want to go back and re-shoot this as I do not like this picture (it is on the way to and from a place I shoot so I just shot a few shots on my way past) but I love the location and I know there is a shot in there. I want to go back and shoot it again but wondered if I would need a release.

Does the website that anyone uses offer you a basic release template that you can or do use?

[Andy]

Dean: Right on the "news" thing -- I neglected to mention that. The American Law background on Patents, Trademarks and Copyrights is actually pretty interesting. Most people think these laws were issued as a matter of protection for the inventor/artist. The actual purpose, as articulated by some very early federal court rulings, was to promote learning, art, and (perhaps more importantly) inventing and entrepreneurial endeavors by citizens. The theory was that by offering this limited protection, folks would be more inclined to put things "out there." This may seem like a fine distinction, but it has certainly influenced the thinking of courts on these cases. There are certain, accepted defenses to an infringement claim. One is "news." Another is "education." A third is critical comment. Yet another is "parody." With "news" probably being the brightest-line exception, there is a lot of grey area in all of the others.

A "magazine" might have a more difficult time meeting the exception than a newspaper. Re the paparazzi, while I agree that they probably are using "news" as their rationale, much of what they do and publish is not truly "news" and I think a number of the celebs have made legal headway with their claims of invasion of privacy. I do, however, think that the more you put yourself out there as a "public figure" the less privacy expectation you have -- especially when in a public place.

In the case of your house shot, I don't see any IP application. A person (other than perhaps the architect) doesn't have any copyright or trademark interest in their home (at least I don't think there has ever been a holding as such). So it is back to a privacy issue.

I don't seen anything so unique, or recognizable about this house that would give rise to a privacy issue. It looks like 100 other houses. And, it is a scene plainly visible from a public place. I don't think the owner has any reasonable privacy expectations. If their (recognizable) children or owners were on the porch, or if there was a telephoto shot that "invaded" the inner space of the house, or an extreme closeup of a "The Johnsons" sign, it might be different. I think the homeowner in this case would have a difficult time with any legal action.

Interesting discussion. I'll probably move it to its own topic when I get some time.

[Andy]

Moved from Critiques

[deaner1971]

Andy, thanks for moving this out on its own.

And I think I was aging myself with the "magazine" comment. I am thinking back to the days of peridicals like Life where it was true photojournalism. Or perhaps a curent example is a National Geographic.

I always wondered if the iconic couple celebrating VJ Day with a kiss in Times Square was asked for a waiver.