Saturday, July 14, 2007

More on Property Releases

This morning I found a reference to the PROPER use of property releases:

"In some cases, you'll need to obtain a release for using pictures of places. You may find this odd -- after all if a building can be viewed publicly why is permission required to use an image of it? Over the last few decades some buildings have earned protection under both trademark or copyright laws or both. Trademark law will protect a building's appearance under very limited circumstances. If a distinctive-looking building is used to signify a business's services, then you cannot use an image of that building in a manner that will confuse consumers. For example, the Sears Tower in Chicago functions as a trademark, and if you intend to use it in the foreground of an advertisement, permission should be obtained from the Sears Company. Use of the building's image for informational purposes, such as in magazine article, does not require permission.

Is permission needed to use the image of a trademarked building on a postcard or poster? That issue arose when a photographer sold images of the Rock and Roll Hall of Fame. A federal court of appeals permitted the use of the trademarked building on posters and did not consider it to be trademark infringement. (Rock and Roll Hall of Fame v. Gentile, 134 F.3d 749 (6th Cir. 1998).)

Copyright protection also extends to architectural works, specifically for architectural works created after March 1, 1989. However copyright protection also has limitations. A release is not needed to photograph a building or property visible from a public place. However, permission is needed to photograph and reproduce images of a building protected by copyright and not visible from a public place. Entering private property to photograph a building or related private property may also trigger a claim of trespass. To avoid such claims, photographers, publishers and filmmakers use a property release, sometimes known as a location release." - Stanford University Copyright and Fair Use Overview

Take that Corbis!

Then I found an ultra-conservative usual legal eagle approach described in an article on the ASMP website:


The whole subject of property releases is filled with urban legend, assumption and myth, along with a bit of actual law. As you know, using a person’s likeness for trade or advertising purposes requires a model release. That is because a person has a reputation to protect, a right of privacy and (in some states) a right of publicity. Property has none of these rights. So why should you go to the trouble to get a release?

It’s a good question, but one that requires a complicated answer. ASMP has never seen a statute or a legal case that requires a release for property. The recommendation that you get one is based upon two legal theories.

Below, we use a house as the property in question. Remember that the theories can apply to property other than real estate, such as pets, cars, works of art and other personal property.

Association. The first theory is that a person’s identity might be connected to the property. Take a picture of a house and use it in an article about drug users, and the owner might get angry enough to sue. Why? because everyone on the block knows whose house it is, and, since the house is not actually connected with drugs, the image was used out of context and paints the owner in a bad light. If the owner sees the use of the image as defamation of character, a lawsuit might be the response.

Conversion. The second theory is that there is an offense called conversion, which means that you used another’s property to your own personal gain without the owner’s permission. It is a bit like copyright infringement, which covers intangible property, except it covers tangible property. If I rent out your house while you are away without your permission, I have converted it to my personal gain. That is conversion. The question is this: Is it conversion if I rent out a picture of your house for an advertisement without your permission? The picture of your house is not your tangible property. Is the photo of the house the equivalent of the house (at least for these purposes)?

We know of no case that has ever settled those kinds of questions. ASMP advises that property releases be acquired whenever possible because we don’t want to see you be the test case. - ASMP Property and Model Release Tutorial

If the courts should ever uphold a claim of conversion about public domain artwork it will totally destroy the rights granted to the public by legislation defining public domain work. Corbis as the sponsor of SnapVillage may decide to require property releases where none is actually required by law but this action will defeat the stated purpose of their website as a site for amateurs and semi-professional photographers to sell their work. People should not be held liable for laws that don't exist yet (and hopefully never will!)

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