A reader asks:
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.