Summary: When taking pictures of structures on property where permission hasn't been granted, and a small effort* has been taken on the part of the owners to keep people out, does the owner of the property have legal recourse against the photographer if he publishes / profits from them?
I'm posting this in the landscape question because I figure landscape photographers might have run into a similar situation - sorry if this is in the wrong forum.
My hobby is photographing abandoned buildings. Most of the time I work to secure permission from the owner beforehand, but on several occasions I've been unable to find them and have simply gone in on my own. I fully understand that constitutes trespassing, and accept the legal and ethical consequences. I know what I'm doing can get me in trouble.
There is one location in particular that I've been photographing for the last year or so - an abandoned amusement park. There are several roller coasters and rides that have been abandoned for 20+ years, and make for some really interesting photography. This location is very well known in the exploring community, and regarded as wide-open, meaning that the owner makes litte/no effort to keep people out. I often meet other photographers on my trips there, as well as local residents who are passing the day walking through the park they visited as children. The park is fenced off, though the fence has been taken down in some places. There is no fencing on the part of the park that is on the lake.
I am working on a coffee table book on the history of the park and the pictures I've taken. My inital intent was to do a small run and give them to friends and family, but a small publisher is showing some interest.
My conflict is in that the owner of the property has at no time given me permission to photograph there, and I don't expect that I will be able to obtain it. What sort of legal rights does he have should I go ahead and publish the work?
*There are posted no trespassing signs and some attempts to keep people out, however the park is easily accessible and by all accounts trespassing laws are not enforced. I have since learned the the owner denies permission via formal requests to enter the property.
I apologize for the length of the post, but I wanted to make it clear that I accept that the pictures were taken while trespassing, and that all rights to publish / profit from them are forefit. I'm not trying to pull a fast one.
So what if someone sees your book and says 'I know where that is!' and visits the (legal description) "Attractive Nuisance" and is injured and sues the owner of the property and then they come back on you/your publisher for advertising the place?
If a scenario similar to that should happen, who do you think would win?
Beyond any profits that might exist (or not) on your book, what might a good skilled lawyer think you should be charged in punitive damages? (Especially since you are clearly aware that you've been breaking the law to obtain the images.)
I think you should ask an attorney who specializes in whatever field this comes under -
OR take your photos directly to the owner and show them what you have and specifically ask for their permission.
My understanding is that anything you can see from the road is fair game, but if you trespass, then you can be sued.
Even if you're involved in a lawsuit that you're sure you will win - lawsuits have a way of destroying the lives of everyone involved - even the 'winner.'
"Trespass" laws vary some from state to state, I'd expect that laws on how you can "profit" from using another persons property or making money from criminal activity may vary as well. It may well be that what you are doing or at least contemplating goes beyond simple trespass.
"So what if someone sees your book and says 'I know where that is!' and visits the (legal description) "Attractive Nuisance" and is injured and sues the owner of the property and then they come back on you/your publisher for advertising the place?"
Trespass doesn't cause you to forfeit your profit necessarily; rather, it subjects you to liability for trespass for which your photos act as evidence. I'm not sure how the profit from your trespass would be treated in terms of liability, though in all honesty, I would be very surprised if someone sued you for trespass after the fact. Moreover, if the owner of the land doesn't sue you within the statute of limitations for trespass, you're home free.
From a copyright perspective, the owner doesn't have a right to prevent you from photographing structures constructed before 1990. They cannot sue you in copyright infringement for photographing buildings constructed after 1990 either if the structures are ordinarily visible from a public place;
17 U.S.C. § 120 (a) Pictorial Representations Permitted. — 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.
There aren't many cases clarifying this area, which seems to indicate that the owners of such structures are generally not a very litigious lot.
I'm not an attorney yet, but I will be in a little over a year. Either way, the foregoing should not be construed as counsel. Aside from the immediate threat of trespassing liability, I sense that the risk of litigation is pretty low.
Arka C.
Edited by lordarka on Feb 29, 2008 at 10:35 AM GMT
Just a devil's advocate kind of thought: What if you simply respected the wishes of the owner of the property and didn't publish the pictures? Just a thought...
Then the community as a whole would be the poorer without the OPs photos whereas the one person objecting would be better off. And that would disturb Mr. Spock.
It comes down to principle. If you feel comfortable profiting from bending and breaking the rules to reach your desired goals, by all means publish the images and deposit the income from your photos. The ends justify the means .... right? Just be prepared in this law suit crazy world to spend all or most of that income from those images defending yourself down the road if need be.
What ever happened to doing what is right because it is the right thing to do?
The results of the case discussed at photoattorney.com's website should be quite instructive. It's a different circuit from yours, but the results may be persuasive in other circuits.
I think the best advice would be for you to find the property owner, and seek his permission to shoot on his land. If you dig deep enough, you should be able to secure permission. If you can obviate the potential liability for trespass, you definitely won't have a problem making a book of images later and selling it.
runner301 wrote:
Just a devil's advocate kind of thought: What if you simply respected the wishes of the owner of the property and didn't publish the pictures? Just a thought...
Thats a very valid question, one that I've been tossing around. Having considered everyones comments, I think I'm going to go one of two different ways:
1) Seek permission and cut him in on what little profits there would be. This doesn't bother me because I'm certainnly not looking to get rich doing the book, I simply have a massive ego and like to see my name in print.
2) Wait until the park is demolished. That could be coming soon.
Hah, I immediately thought of that blog posting when reading the OP's question. For me, I would not publish since it sounds like many of the photos fall in the same category--taken while trespassing. I would think anything taken from public property is fair game. All told, I'll bet it isn't worth the potential headache if the property owner won't grant access to photograph the site for that project.
