RDKirk
28th of April 2010 (Wed), 19:17
This was ultimately settled out of court, but the federal copyright court's rulings about its jurisdiction are extremely interesting with regard to the necessity (or non-necessity) of property releases.
A first point is that there is not in the US any current legislation or court precedence that necessitates property releases. ASMP recommends them for safety, even while acknowledging there's nothing proving them to be necessary.
But here is something from last year very interesting. Essentially, as I read it, the federal court has ruled that the federal issue of copyright and freedom of speech trumps all state law that might have been used to restrict the use of images of property (this does not include trademark infringement, which is also federal-level laws), and removes such a case from state jurisdiction.
It dismissed the property owner's claim of trespass because they failed to prove certain elements of the state trespass law...this means a photographer could still be sunk on that aspect.
It dismissed the property owner's claim of invasion of privacy also based on the particular state law, which leaves that as well something for a photographer to be careful of.
The court dismissed the property owner's claims of conversion (using someone else's property for one's own gain), which is the most important part of this ruling. This federal court has basically established that the owner can't claim damages for someone else earning a buck on images of his property by taking the matter completely out of the state's hands.
Federal courts, then, have generally found that when a conversion claim encroaches upon the subject matter covered under federal copyright law, the claim is preempted and should be brought as a copyright claim. A conversion cause of action only passes the extra element test where there was actually physical property converted, or some other circumstance . . . which makes the conversion cause of action fundamentally distinct from the kind of claim that could be brought under the Copyright Act. . . .
The court simply cannot see how the gravamen of the conversion claim is not simply this: that Defendant unlawfully photographed an image belonging to Plaintiff and is now commercially distributing it. Plaintiff has not asserted that Defendant took any tangible object, so the only possible property of Plaintiff's that Defendant is alleged to have converted is the image of "Plantation Road."Disputes over ownership, use, or distribution of photographs and images are properly the realm of federal copyright law.
Of course, this hasn't hit the Supreme Court yet, and the plaintiff has the cash to keep filing more briefs, but at this point, the "need" for property releases not only has no actual legal basis but has also suffered a significant setback.
http://www.photoattorney.com/2007/12/property-release-requirement-put-to.html
A first point is that there is not in the US any current legislation or court precedence that necessitates property releases. ASMP recommends them for safety, even while acknowledging there's nothing proving them to be necessary.
But here is something from last year very interesting. Essentially, as I read it, the federal court has ruled that the federal issue of copyright and freedom of speech trumps all state law that might have been used to restrict the use of images of property (this does not include trademark infringement, which is also federal-level laws), and removes such a case from state jurisdiction.
It dismissed the property owner's claim of trespass because they failed to prove certain elements of the state trespass law...this means a photographer could still be sunk on that aspect.
It dismissed the property owner's claim of invasion of privacy also based on the particular state law, which leaves that as well something for a photographer to be careful of.
The court dismissed the property owner's claims of conversion (using someone else's property for one's own gain), which is the most important part of this ruling. This federal court has basically established that the owner can't claim damages for someone else earning a buck on images of his property by taking the matter completely out of the state's hands.
Federal courts, then, have generally found that when a conversion claim encroaches upon the subject matter covered under federal copyright law, the claim is preempted and should be brought as a copyright claim. A conversion cause of action only passes the extra element test where there was actually physical property converted, or some other circumstance . . . which makes the conversion cause of action fundamentally distinct from the kind of claim that could be brought under the Copyright Act. . . .
The court simply cannot see how the gravamen of the conversion claim is not simply this: that Defendant unlawfully photographed an image belonging to Plaintiff and is now commercially distributing it. Plaintiff has not asserted that Defendant took any tangible object, so the only possible property of Plaintiff's that Defendant is alleged to have converted is the image of "Plantation Road."Disputes over ownership, use, or distribution of photographs and images are properly the realm of federal copyright law.
Of course, this hasn't hit the Supreme Court yet, and the plaintiff has the cash to keep filing more briefs, but at this point, the "need" for property releases not only has no actual legal basis but has also suffered a significant setback.
http://www.photoattorney.com/2007/12/property-release-requirement-put-to.html