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FORUMS Post Processing, Marketing & Presenting Photos The Business of Photography 
Thread started 10 Jul 2013 (Wednesday) 16:09
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Company wants to license real estate image

 
AltgnJoey
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Jul 10, 2013 16:09 |  #1

This would be for their marketing material, and not being used at all to make money. Thing is I never got a property release for the house, just a contract with the realtor. Do I have any legal rights to license the photo to this company or should I let them know its a no go?


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AltgnJoey
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Jul 10, 2013 16:10 |  #2

The photo is from last year, so I have no idea who the home owners are now.


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gonzogolf
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Jul 10, 2013 16:11 |  #3

Is the image taken from the street or outside? And how is being used in marketing materials not being used to make money?




  
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AltgnJoey
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Jul 10, 2013 16:13 |  #4

It was taken in the drive way, they are using it for presentations within their company.


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gonzogolf
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Jul 10, 2013 16:16 |  #5

You dont need a property release if what you took was visible from the street. The value of property releases has been questioned generally but this doesnt seem to be a circumstance where one would be required.




  
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Dan ­ Marchant
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Jul 10, 2013 20:47 |  #6

AltgnJoey wrote in post #16108703 (external link)
This would be for their marketing material, and not being used at all to make money.

1. They are a business. Their marketing is for the purpose of making money.

2. In the US there is no state or federal law that requires you get permission/a property release to photograph someone's physical property, to sell/license the image or to use it in advertising. Someone did try to sue HSBC for using a photo of their home in its marketing materials. They tried 7 approaches and all were rejected by the court. Details at http://propertyintangi​ble.com - Robinson v. HSBC Bank USA, No. C 10-01494 SI (N.D. Cal. Aug. 9, 2010). (external link).

3. Another reason why the concept of a property release is a nonsense is that it's physical property - the current owner might die, sell it or give it away tomorrow, thus rendering any release utterly useless. The justification for a model release is that use (or misuse) of a persons likeness might cause them harm or loss and so you must get their permission - of course they can only give permission for themselves and not for anyone else in the photograph.

If you apply that to a property release and accept that the owner of the property might suffer harm or loss (a view rejected by the courts) then that must also be equally true of any future owner. And, just like a model release, the current owner can only grant their own permission, not that of future owners. So any release would be rendered worthless on sale of the property. Are you supposed to keep track of every piece of property you use an image of to ensure it hasn't been sold (at which point you would need to get a new release) - and what if, half way through a year long marketing campaign, someone buys the property and refuses to grant a new release. You are now faced with having to pull all your adds, change the posters and pulp all your marketing materials. That is unless the current owner is willing to enter into a binding covenant that they will only sell the property to someone who agrees to accept the terms of the property release.

If the courts were to accept the concept of a property release as valid then the New York Sausage and Pie Company, The Boston Coffee Palace and Chicago Meatopia would all effectively be denied the ability to use a photograph of the city they are proud to call home, due to the need to get a release from the owner of every single building in the image. Then of course there are the rights of all the people renting those houses and offices.....

Conclusion:
1. There is no law which requires a property release for using a photo of physical property.
2. The above fact wont stop an idiot from trying to sue whoever uses said image.
3. You could get a signed property release from the owner just to be safe but there is no guarantee that a month or year from now that the release wont be rendered utterly worthless.
4. That stupid person above who wants to sue even though you did nothing wrong? Signing a release wont make them sensible - they may just as well sue you because they didn't realise the implications of the release and now think it is unfair.

The correct way to protect against spurious law suits is via insurance. The company that wants to use the image should have indemnity insurance anyway. If they don't they aren't running their business properly.


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breal101
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Jul 11, 2013 07:21 |  #7

The practical answer is to get a release whenever possible. This is the advice given by ASMP. The legal answer is fuzzy and even lawyers don't agree. That's what lawyers get paid to do, to disagree.

Some of what Dan said isn't true in all cases, it depends on the language of the real estate sales contract. For instance, if the mineral rights were sold on a property, rights of way were granted, etc. the contract can state that these are valid for all future owners of the property.

He is basing his advice on a single decision in a court in California, if you aren't in California there is no reason to believe that it will have any validity in your state.


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Dan ­ Marchant
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Jul 11, 2013 22:52 |  #8

breal101 wrote in post #16110389 (external link)
Some of what Dan said isn't true in all cases, it depends on the language of the real estate sales contract. For instance, if the mineral rights were sold on a property, rights of way were granted, etc. the contract can state that these are valid for all future owners of the property.

There are exceptions to every rule but they are exceptions, not the rule. Governments around the world put in place specific legislation in relation to mineral rights due to their massive economic importance and the substantial financial damage that rights holders would suffer in the event that they were blocked from accessing those minerals. There are currently no such laws in place for other types of property and it would make no sense to enact them. A single rights license for mineral rights will generate millions of dollars in tax revenue and billions of dollars for the company involved. The license fees on the use of an image of a house would generate a minimal (if any) tax income and hundreds or at most thousands of dollars for the owner. The cost of enacting such legislation would outweigh any economic benefit and that doesn't factor in the unreasonable burden that the creation of property image rights would impose on businesses (listed in point 3 below).

He is basing his advice on a single decision in a court in California, if you aren't in California there is no reason to believe that it will have any validity in your state.

1. No, I'm basing my advise on the fact there is no federal or state law (in any state) that requires such a release. You're advising the OP not to do something legal because, at some unknown point in the future, someone, somewhere may sue and at that time a judge may rule in their favour. On that basis we should all stop taking photographs in case the law changes some day.

2. I posted details of one case because its the only one to come to court. I view the fact that people aren't being sued over this in other states to be a good thing. Currently more people are being sued for (allegedly) taking bad wedding photos.

3. If/when this matter does come to court again the court will have to balance one individuals rights against the rights of many. The creation of property image rights (where none currently exist) would make it effectively impossible to use a photograph or video of a town or city for marketing purposes. I just Googled "London skyline" and picked an image at random. It contained at least 17 buildings, one ship, a railway bridge and a crane. Those were just the identifiable properties which you would need to trace the owners of and get a release; which of course you are going to have to pay for. You need their permission to use the image so you can bet they are going to want to be paid (and it needs to be enough to more than cover the cost of their expensive corporate/property lawyers). So say $1000 per property - your photo now costs $20,000 plus the cost of the usage license from the photographer themselves. And for what? You haven't invaded anyone's privacy - they built giant showy tower blocks specifically to get noticed. You haven't done them any actual harm by using the image that they would need to compensated for - and all of this so that you and I can stop people using a photo of our house or car, which we may sell next year or the year after and have no further association with.


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Tom ­ Reichner
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Jul 12, 2013 13:41 |  #9

AltgnJoey wrote in post #16108703 (external link)
This would be for their marketing material, and not being used at all to make money. Thing is I never got a property release for the house, just a contract with the realtor. Do I have any legal rights to license the photo to this company or should I let them know its a no go?

Just write into your licensing agreement that all releases are their responsibility, not the responsibility of the photographer. This is what I have done, and sometimes I have gotten clients to pay me for the use of images on that basis.

That being said, many companies are scared of using any image without releases, because the do not want to face the eventuality of someone threatening to sue them. Even if no suit is filed, companies often feel the need to pay an attorney to write a response to the threatening party. Just having a lawyer write a letter can cost upwards of a hundred bucks, and few companies want to risk that type of needless expense.


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