Picture Law
/forum/topic/1182907/0



AFC168
Registered: Oct 21, 2008
Total Posts: 279
Country: United States


I've been seeing a lot of books, especially e-books, with pictures of private property. For example, there's an e-book on Amazon that talks about the water parks at Disney and shows pictures of all those water parks. Is that legal?

If I went to play a golf course and took a photo, could I include that a book? Does it matter if the course was public versus resort versus private?

Thanks for any guidance!



cgardner
Registered: Nov 18, 2002
Total Posts: 9376
Country: United States

See: http://www.krages.com/ThePhotographersRight.pdf



AFC168
Registered: Oct 21, 2008
Total Posts: 279
Country: United States

Thanks for the link. Are the pictures that are taken allowed to be used in a book or website?



Dudewithoutape
Registered: Oct 07, 2009
Total Posts: 1069
Country: United States

It probably comes down to proper citation?



cgardner
Registered: Nov 18, 2002
Total Posts: 9376
Country: United States

AFC168 wrote:
Thanks for the link. Are the pictures that are taken allowed to be used in a book or website?


There's a principle called "fair use" which is what allows reviewers to quote sections of books without violating copyright.

In the case of a photo you own the copyright of the photo, but not necessarily the commercial rights use it for financial gain without a release if it wasn't taken from public land. So for example you might need to secure a property release to use a photo taken at a private golf course in an advertisement for golf equipment if the course logo is seen in the background.




DigMeTX
Registered: Nov 26, 2010
Total Posts: 1484
Country: United States

If you're asking this question because you have a professional interest in the answer then I would not ask photographers. Ask a lawyer.

brad



RustyBug
Registered: Feb 02, 2009
Total Posts: 12576
Country: United States

Property release @ "identifiable" property for commercial gain usage ... but,+1 @ check with competent legal.



davenfl
Registered: Jun 29, 2008
Total Posts: 4073
Country: United States

Absolutely get proper legal advise. The answer is highly dependent on the specific circumstances. If the property is publicly owned you generally have no issues. Private property onto which you were granted access will more times then not require a release of some kind. Their granting of you access does not give you automatic permission to take photos for publication.

Dave



obscure
Registered: Sep 11, 2011
Total Posts: 39
Country: N/A

davenfl wrote:
Their granting of you access does not give you automatic permission to take photos for publication.


Actually it does. Put simply there is no law that automatically prohibits the taking of photos on, or of, private property. So, if someone allows you on their land you are free to take photos, sing badly, or perform any other legal actions.... until the land owner specifically asks you not to (either in person or by posting a notice). If you continue after being asked they can request that you leave. If you refuse they can call the police who will ask you to leave. If you don't you can be arrested for trespassing - note: you aren't arrested for illegally photographing or singing badly. The only wrongdoing you are guilty of is trespass.

Any images captured during your time on the property are yours. You own the copyright and are free to do whatever you want, including sell them. You can even use images of someone else's private property in an advert (legally at least - although the bad press from doing so means it is probably unwise).

Here are two blog posts by Carolyn E Wright (aka the Photo Attorney) on the subject.
http://www.photoattorney.com/?p=1561
http://www.photoattorney.com/?p=447



RustyBug
Registered: Feb 02, 2009
Total Posts: 12576
Country: United States

Before suggesting that we can do "whatever we want" with our pics, because they are our images (i.e. we own the copyright), based on these two instances ... the issue that seems to be overlooked here is the element of "identifiable" (iirc, I think that's the right term).

While I didn't read through the linked articles of Carolyn's (whom I'm spoken with and emailed on multiple occasions) ... the images on both linked pages are images that could have been shot similarly elsewhere and have no real identifying elements to them. That is not the same as taking a shot of the 18th hole @ Pebble Beach or the Biltmore Estate which are readily recognizable (or a recognizable logo as Chuck mentioned).

I admit that I need to study more on the matter of "property release" ... and welcome correction on the matter ... but a "carte blanche" attitude because we own the pics, we can do whatever we want is folly dissemination of advice, imo. If that were truly the case, we would never need a "model release".

Has the use of "property release" gone by the way of the dinosaur, or is it an extremely rare necessity ... some may think so. Rather, I think there is some mixing of the "right to take the pic" with the "right to use the pic" for commercial gain going on here. I'd not be the one to have advised someone that just because it is okay for them to take it, that it is okay for them to use it anyway they want (i.e. commercial gain) ... might want to recheck that one.

I can take a picture of Coke bottle all day long ... does that give me the right to use "my pic" (that I own) for commercial gain in any manner that I want. Coke (as the owner of that identifiable entity) might have something to say about that. Coke has a vested interest in that recognition. The owner of a golf course, water park, etc. may feel likewise that they have something to say in the realm of "property release" for specified usage.

If you were putting together a "tourist guide" or something as such, I'd think that most entities would have little objection, as they are potentially receiving some benefit of the marketing ... and rarely would they say much about it. But, just because they aren't making any noise about that usage, doesn't extend "carte blance" usage to all pics that we own. I plan to be working on a different project in the next 1-3 years that I anticipate will incur the need for property releases ... based on my preliminary research on the issue.

I re-iterate my need to further understand the specifics of the issue (relative to the specifics of the instance), but my lacking of expertise in the subject doesn't render it moot to consider its pertinence in lieu of a "carte blance" perspective.

+1 @ appropriate legal counsel regarding specifics (i.e. editorial, commercial gain, personal use, etc.) vs. generalities.

ASMP has put forth some introductory info regarding property releases.
To my way of thinking, if they've chosen to mention it ... it might have some merit. Whether or not you will need one for a given application ... depends.
http://asmp.org/tutorials/property-release.html#.UPw5vqxRWOs



Littleguy
Registered: Sep 08, 2009
Total Posts: 245
Country: Canada

If you read the blog post you provided - you will see that it is really a "It depends" and not a you can do what you want if they allow you on the property.

It comes down to resulting injury or damages and usually to the publisher of the works - not necessary the copyright holder unless they are one and the same.

If the publishing of the photo resulted in a financial injury or damages - you can bet your bottom dollar - there is going to be a lawsuit. I think those cases went the way they went because the court did not believe any damages were caused by the publishing of the said photos. Also interesting to note that both those cases were state law cases and not US Federal copyright cases.

You also have to watch out for Trademark law too, are there any Trademarks in your photos.

So to the original OP - those e-books you saw - they were most likely portofolio books e.g. these are pictures of water parks I have been to and not these are the worst water parks in American I have been to. Also you have to look at how rich or big pockets the publishers are - if they don't have deep pockets - why is someone to sue them for damages that even if there is a damage award, there is no payout because the publisher has no money, unless they are rich themselves and don't really care for the money but will sue just for the principle of it.

Those are the people you have to watch out for because even if you can defend yourself - you are going to go broke paying for the legal bills.

obscure wrote:
davenfl wrote:
Their granting of you access does not give you automatic permission to take photos for publication.


Actually it does. Put simply there is no law that automatically prohibits the taking of photos on, or of, private property. So, if someone allows you on their land you are free to take photos, sing badly, or perform any other legal actions.... until the land owner specifically asks you not to (either in person or by posting a notice). If you continue after being asked they can request that you leave. If you refuse they can call the police who will ask you to leave. If you don't you can be arrested for trespassing - note: you aren't arrested for illegally photographing or singing badly. The only wrongdoing you are guilty of is trespass.

Any images captured during your time on the property are yours. You own the copyright and are free to do whatever you want, including sell them. You can even use images of someone else's private property in an advert (legally at least - although the bad press from doing so means it is probably unwise).

Here are two blog posts by Carolyn E Wright (aka the Photo Attorney) on the subject.
http://www.photoattorney.com/?p=1561
http://www.photoattorney.com/?p=447



cgardner
Registered: Nov 18, 2002
Total Posts: 9376
Country: United States

RustyBug wrote:
If you were putting together a "tourist guide" or something as such, I'd think that most entities would have little objection, as they are potentially receiving some benefit of the marketing ...


That's the type of use that falls under the "Fair Use" principle. But if you were to show up with a model in a bikini on Disney World property for what obviously looks like a commercial shoot management / security would object because they have no idea how you might use the photos. But if you photograph the model on a public location with the Magic Kingdom in the background there's nothing they can do to prevent it before or after the fact.

In DC at the Mall theres a USPS regulation requiring a permit to shoot with a tripod. It's never enforced for tourists (unless they are otherwise a nuisance or blocking access) and on the books mainly to prevent someone showing up with a huge crew for a commercial photo shoot.



mdude85
Registered: Apr 12, 2004
Total Posts: 4396
Country: United States

cgardner wrote:


In DC at the Mall theres a USPS regulation requiring a permit to shoot with a tripod. It's never enforced for tourists (unless they are otherwise a nuisance or blocking access) and on the books mainly to prevent someone showing up with a huge crew for a commercial photo shoot.


The National Park Service (NPS, not USPS) regulates certain areas of the National Mall and the Capitol Police oversees permits for commercial shooting in the Capitol area. Commercial shooting requires a permit regardless of whether a tripod is used, but using a tripod in itself does not require a permit when shooting on the National Mall.

Tripods are permitted on the National Mall with the exception of certain areas, notably inside the Lincoln and Jefferson Memorials (I think it has something to do with the marble surface and possible security/crowd control concerns -- however, I have heard that some types of rubber footed tripods may be allowed at park ranger discretion).

I have also been stopped for taking a tripod into the flag area of the Washington Monument but I'm not certain whether it's actually prohibited.