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FORUMS Post Processing, Marketing & Presenting Photos The Business of Photography 
Thread started 31 Jan 2014 (Friday) 16:28
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Release for old building in scenic

 
monkey44
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Feb 03, 2014 09:24 |  #16

Picture North Carolina wrote in post #16660015 (external link)
What I said was "about the pictures that were published" not "that the pictures got published", but yeah.. I should have been more literal and said that the anger was about the choice of a few of the pictures that were chosen to be published, not all.

That's even stranger -- odder, weirder. Maybe you could give us more of this story, a more complete picture (HA, did I really write that :))




  
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Dan ­ Marchant
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Feb 03, 2014 23:00 |  #17

breal101 wrote in post #16657505 (external link)
.....No way in hell would the many I work with put themselves at risk by using an unreleased photo of a property.

But they are doing exactly that, they just don't know enough to realise it. The protection from a property release is temporary at best and at worst non-existent.
Just going to go ahead and post a small quote from a previous thread on this topic to explain....

Dan Marchant wrote in post #16109420 (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.

breal101 wrote in post #16657505 (external link)
It's common practice to pay for locations, with release. Do you really think that they would pay if they thought they could send a photographer out to get pictures for advertising without releases if they thought they could do so without risk?

It would be silly not to pay. They don't want to turn up at a location and have the owner call the police and kick them out. And, given that they are paying anyway they might as well get a release even if it doesn't actually provide the protection they imagine it does.

However, that is irrelevant to the OP (or anyone in their situation) as the images have already been taken. They don't need anyone's permission to enter their property so all they would be paying for is a release that doesn't actually provide the protection they assume.

Conclusion
1. Dan has now informed us that he has personal reasons for not publishing the images - namely that the relationship broke down. That is a valid reason not to go ahead with publishing. That issue aside Dan (or anyone in their situation) doesn't need a release.
2. Anyone could be sued at any time but the threat of legal action isn't a valid reason not to publish images of physical property. The fact is that you are far more likely to be sued doing wedding photos than you ever will publishing photo books.
3. If you are shooting for a corporate client then you are obviously going to pay to get access to locations/property. If getting a release makes your client happy then go ahead. Just don't be mislead that it actually provides the protection they imagine.


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breal101
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Feb 04, 2014 14:00 |  #18

Dan Marchant wrote in post #16661885 (external link)
But they are doing exactly that, they just don't know enough to realise it. The protection from a property release is temporary at best and at worst non-existent.

That's absolute BS, even if it's temporary it wouldn't apply to most advertising which is also temporary. A well written contract, and a release is a contract, will stand regardless of the lack of a law that requires said contract.


Just going to go ahead and post a small quote from a previous thread on this topic to explain....

It would be silly not to pay. They don't want to turn up at a location and have the owner call the police and kick them out. And, given that they are paying anyway they might as well get a release even if it doesn't actually provide the protection they imagine it does.

However, that is irrelevant to the OP (or anyone in their situation) as the images have already been taken. They don't need anyone's permission to enter their property so all they would be paying for is a release that doesn't actually provide the protection they assume.

Conclusion
1. Dan has now informed us that he has personal reasons for not publishing the images - namely that the relationship broke down. That is a valid reason not to go ahead with publishing. That issue aside Dan (or anyone in their situation) doesn't need a release.
2. Anyone could be sued at any time but the threat of legal action isn't a valid reason not to publish images of physical property. The fact is that you are far more likely to be sued doing wedding photos than you ever will publishing photo books.
3. If you are shooting for a corporate client then you are obviously going to pay to get access to locations/property. If getting a release makes your client happy then go ahead. Just don't be mislead that it actually provides the protection they imagine.

Since you brought up weddings, by your reasoning that no law requires a contract and a wedding photographer can be sued anyway. There would be no reason for a wedding photographer to work under a contract. That really seems stupid to me and flies in the face of standard industry practice. The same way that obtaining a property release is standard practice for the advertising and the stock photo industry.

My conclusion is that your advice is impractical in the real world.


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monkey44
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Feb 04, 2014 14:19 |  #19

monkey44 wrote in post #16660027 (external link)
That's even stranger -- odder, weirder. Maybe you could give us more of this story, a more complete picture (HA, did I really write that :))

Quoting myself here - read the entire thread and am still unsure what the real issue is with the OP ... I do understand about 'permissions' and all that, what I'm unsure about is who got mad and why he got mad ...

The way I see it so far -- someone shot some photos with owner permission - then the photos got published, now the building owner is upset about something or some way the published photos present the owner's personal image (self or building) to the public ? What am I missing something?




  
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MattPharmD
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Feb 04, 2014 15:17 |  #20

breal101 wrote in post #16663248 (external link)
Since you brought up weddings, by your reasoning that no law requires a contract and a wedding photographer can be sued anyway. There would be no reason for a wedding photographer to work under a contract. That really seems stupid to me and flies in the face of standard industry practice. The same way that obtaining a property release is standard practice for the advertising and the stock photo industry.

My conclusion is that your advice is impractical in the real world.

Regarding the Release: I think his point is that a property release is a contract with the owner of a property. However, if that owner sells the property, the new owner does not have a contract with you.

I think weddings are different because you are creating a contract for payment for a service. You aren't getting permission to sell their wedding photos to a third party (usually). Theoretically if someone had a small wedding outside downtown (happens) and I took pictures (without a contract) from publicly accessible property, I could sell those pictures as street photography. Wouldn't even need a model release.

I am not saying you shouldn't get a property release. However, there doesn't seem to be any legal precedent for what happens without one (Trademarks notwithstanding), or a legal basis for which you could be sued if you didn't have one (again excluding TMs).


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breal101
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Feb 04, 2014 16:40 |  #21

MattPharmD wrote in post #16663445 (external link)
Regarding the Release: I think his point is that a property release is a contract with the owner of a property. However, if that owner sells the property, the new owner does not have a contract with you.

I think weddings are different because you are creating a contract for payment for a service. You aren't getting permission to sell their wedding photos to a third party (usually). Theoretically if someone had a small wedding outside downtown (happens) and I took pictures (without a contract) from publicly accessible property, I could sell those pictures as street photography. Wouldn't even need a model release.

I am not saying you shouldn't get a property release. However, there doesn't seem to be any legal precedent for what happens without one (Trademarks notwithstanding), or a legal basis for which you could be sued if you didn't have one (again excluding TMs).

My point is that it would be rare that someone would sell the property in the short time that the ad was being used. Aside from that there is no assurance that the release wouldn't be transferred throughout the real estate contract, like a right of way might be transferred. It could be considered an encumbrance that practically all real estate contracts have provisions for.

On weddings, a contract is a contract, my point being that there is no law that requires a wedding photographer to have a contract yet it is standard industry practice. Dan contends that because no law requires a release/contract for property it's perfectly OK to use a picture for commercial use without one. I'm saying that it just invites trouble to ignore the possible consequences of using a picture of someone's property without permission.

In your theoretical scenario, you're right you could sell the pictures as street photography but selling them as advertising for a service or product might be risky.

Here's a theoretical scenario where I or my client could be in deep doo-doo. Say I shoot a picture of a house from the street without permission of any kind. I then edit in a picture of a huge inflatable beer can and sell the picture to the beer company for advertising. If the owner of the house turns out to be strictly opposed to alcohol and has taken a public stand on that opposition he could possibly sue and win based on the ridicule he may be subjected to at his work, church, his kids at school etc. A lawyer would love a case like that. That's just one that I can think of offhand.

As I've said before you are in a better position with a release than without one.


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jwhite65
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Feb 05, 2014 13:43 |  #22

breal101 wrote in post #16663690 (external link)
Here's a theoretical scenario where I or my client could be in deep doo-doo. Say I shoot a picture of a house from the street without permission of any kind. I then edit in a picture of a huge inflatable beer can and sell the picture to the beer company for advertising. If the owner of the house turns out to be strictly opposed to alcohol and has taken a public stand on that opposition he could possibly sue and win based on the ridicule he may be subjected to at his work, church, his kids at school etc. A lawyer would love a case like that. That's just one that I can think of offhand.

As I've said before you are in a better position with a release than without one.

Here's a case very similar to your theoretical scenario: Property (external link)


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monkey44
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Feb 05, 2014 14:04 |  #23

Seems the argument that the owner could invalidate the rights to use if he sold it is a little odd.

At the time of the permission, the image was shot. So, later, the new owner has no standing, as the time frame of shooting it was then, not now. I can't imagine a retroactive revocation of an image right holding water. If so, images of any 'famous' person could be withdrawn and cause harm to the original purchaser after that purchaser spent time and money, for example.

Let's say, Nike shot an image of a BB player in Nike shoes - because he is famous. That athlete can not withdraw the rights to show him wearing Nike shoes, because Nike shoes is the shot, and incidental is the famous athlete - an implied endorsement.

Although the house in question here is not an endorsement per se, it still divorces itself from its owner. It is a time and place in history, and not a removable icon.




  
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nathancarter
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Feb 05, 2014 15:37 |  #24

monkey44 wrote in post #16665923 (external link)
Let's say, Nike shot an image of a BB player in Nike shoes - because he is famous. That athlete can not withdraw the rights to show him wearing Nike shoes, because Nike shoes is the shot, and incidental is the famous athlete - an implied endorsement.

People have rights. Houses don't have rights.


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monkey44
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Feb 05, 2014 15:42 |  #25

nathancarter wrote in post #16666164 (external link)
People have rights. Houses don't have rights.

Yes, exactly my point, in a round about way.

Should have included the words "athlete signed off on original image" ... once he did, he can't withdraw later for that specific image - only for future images of himself.




  
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Feb 05, 2014 16:05 |  #26

I think you're in the clear if it's visible from public property, but I think there are exceptions too. Isn't the Empire State Building for example trademarked? I don't think you could sell a photo of it legally w/o a release and this might apply for other buildings too. Landmarks if you will, which I doubt a barn would be.


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monkey44
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Feb 05, 2014 16:40 |  #27

phantelope wrote in post #16666242 (external link)
I think you're in the clear if it's visible from public property, but I think there are exceptions too. Isn't the Empire State Building for example trademarked? I don't think you could sell a photo of it legally w/o a release and this might apply for other buildings too. Landmarks if you will, which I doubt a barn would be.

You can always sell that photo to journalistic venues - private advertising, maybe not. No one can stop publishing any photo any time if it's 'news' or documenting a specific time or place, or person, or animal, as long as it's a true representation ... it's the 'use for advertising' or 'personal art' sales that may stretch that boundary.




  
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breal101
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Feb 05, 2014 19:51 |  #28

jwhite65 wrote in post #16665873 (external link)
Here's a case very similar to your theoretical scenario: Property (external link)

Similar but not exactly the same. It's one of the cases Dan Marchant continues to use that he claims invalidates the concept of property release.

I intentionally brought up false advertising because the inflatable beer can in his yard might lead one to believe that the owner endorsed that brand of beer. When in fact it was added electronically. Just for fun I added damages to his young children, ohh the children. Imagine the impact on a jury of the property owner's crying children on the witness stand with cell phone videos of other children yelling "your father is a liar and a drunk" and worse. Since it's imaginary I could add that one of the children gets pushed down and suffers a broken arm.

The point of all this is that every case may be different. Any lawyer will tell you that predicting the outcome of a jury trial is foolhardy. One or two cases does not invalidate the concept of property release IMO.

In my imaginary scenario it's clear that contacting the owner for a release would have prevented a lot of problems.

To add to that, this is really out there because the real me the ad exec and the beer company execs would have had to be consuming a LOT of the product to have done anything like this in the first place.:lol::lol::lol:


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jwhite65
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Feb 06, 2014 11:07 |  #29

But I have to agree with Dan... While I would never tell anyone not to get one, I don't see the usefulness of them.
For example:
The owner of a house signs a property release for you which says you can photograph the house and install digital images of beer cans in his yard. The day after he signs this release, he sells the house to me. Would you then have to come back and get a release signed by me?

In my understanding, the whole point behind a release (from a person) is so that his/her image can't be used to promote something without his/her permission. The point being that a person may not want their public image tarnished by appearing to support "whatever".
A house / building / structure doesn't have a public image to be tarnished. Therefore, no reason for a release.

Of course, a structure which is trademarked is a whole other thing and not what I'm speaking of.


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breal101
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Feb 06, 2014 11:49 |  #30

Here's what ASMP has to say about property release:

http://asmp.org …eleases.html#.U​vMFn_3pWM8 (external link)

I do have a prejudice toward ASMP as a former member and chapter officer. I tend to take their advice because they represent hundreds of professional photographers engaged in editorial and advertising photography.

The issue of transfer of the release is addressed under the heading Future Proofing.

You may want to read the entire short article, in their imaginary scenario they are using editorial use.


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