Legal question

I recently spent 3 days on the Biltmore Estate property in Asheville, North Carolina. I photographed the majority of the visit (not inside the house where it's prohibited).

Their photography policy states photographs can't be used for commercial use, only for personal use. Does that mean I can't sell fine art prints of the grounds, estate house for my own profit as an artist? I'm not using them commercially as in advertising a product.

Here's the link for their policy regarding photography: http://www.biltmore.co​m/visit/trip/photo_pol​icy.asp

Here it is copied & pasted:

Photo Policy


Thank you for helping us preserve the integrity of the Biltmore name and image by cooperating with the following policies:

Inside Biltmore House:
Photography, videotaping, sketching, and cell phone use are not permitted within Biltmore House.

Outside Biltmore House:
Taking photographs of the exterior of Biltmore House and grounds, or sketching images of estate grounds, is permitted for personal use only. All commercial uses are prohibited without express written consent. Recording, filming, photography, or taping of any concert or event is strictly prohibited.

Commercial and Wedding Photography:
All commercial uses and wedding photography are prohibited without previous written permission.

Please note that the image, logo, and name of Biltmore are registered trademarks and cannot be used by outside parties without permission from The Biltmore Company. If you would like to publish one of our images on your Web site or in other communications materials, please print our Image Request Form and fax it to 828–225–6139. This signed form is required to process your request. If you are unable to access this form or have other questions about photo usage, please e-mail us.

Biltmore prides itself on its professionalism and experience in working with production companies. To discuss your next project, please e-mail us.

If you're making money its commercial use. Best advice I can give, however, is to seek the advice of an attorney in your area because forums are the worst place to go for legal stuff.

Why not ask them?

Simple answer (and been to Biltmore many times)....

Commercial use is ... using the photo to sell a product (IE fertilizer gets you green grass)...

Fine Art SHOULD be OK BUT...........

The problem is that the owner of the Biltmore as well as everything else I've ever seen doesn't have a clue there is a difference. They think money=commerical...

So I'd ask and be ready for them to say SORRY... Its an expensive place and really they probably need all the money they can get......

The best one was for editorial use. One of our guys was at an aviation museum owned by a founder of Microsoft (not Gates), he said to the people there he was going to write a story to go with his pics for our website. To be nice, they basically tossed him out the front door like a frisbee.... And didn't refund the admission he just paid...

BTW, there are really no riches to be made selling pics of the Biltmore anyways...

Have a good day

Mark H

P51Mstg wrote in post #15881420
Simple answer (and been to Biltmore many times)....

Commercial use is ... using the photo to sell a product (IE fertilizer gets you green grass)...

Fine Art SHOULD be OK BUT...........

The problem is that the owner of the Biltmore as well as everything else I've ever seen doesn't have a clue there is a difference. They think money=commerical...

So I'd ask and be ready for them to say SORRY... Its an expensive place and really they probably need all the money they can get......

The best one was for editorial use. One of our guys was at an aviation museum owned by a founder of Microsoft (not Gates), he said to the people there he was going to write a story to go with his pics for our website. To be nice, they basically tossed him out the front door like a frisbee.... And didn't refund the admission he just paid...

BTW, there are really no riches to be made selling pics of the Biltmore anyways...

Have a good day

Mark H

This!!! Selling a print and making profit does not make it commercial use. You are selling it as art. It becomes commercial when it is used to advertise or associate with something. Just like you can sell street pictures of people, but the moment you want sell them to Pepsi so they can put it on their soda cans, a release is needed.

^^bingo!

the images would not exist without you being allowed to come onto their private property, where they have final say over what can and can't be done. the same thing is true at Frank Lloyd Wright's Fallingwater, among other places.

Thanks for everyone's input. After writing this question last night, I thought of asking PPA since I'm a member. I'll post their response when I get it.

Agree with mark. The legal definition of "commercial use" in respect to images usually means use in advertising or promotion of a product, cause, company or service. However, as Mark suggests, that does not mean that Biltmore are using that definition. I too would assume that they mean to prohibit any commercial exploitation. For a definitive answer you will need to ask them exactly what they mean.

I understand "commercial use", but I'd kind of think that this line - "Taking photographs of the exterior of Biltmore House and grounds, or sketching images of estate grounds, is permitted for personal use only" says you can't sell prints to another person. Of course, whether they would find out if you sold a print and the consequences is probably small.

Why would the definition of "commercial use" as it pertains to photography deviate from the plain, simple meaning of the words? Commercial use of photography means engaging in commerce with the photography. Engaging in commerce means exchanging the photography for something else of value. Selling prints is clearly engaging in commerce. Selling prints is clearly not a "personal use" of the prints. If someone calls their photography fine art and then sells it they are still engaging in commerce and that is still a commercial use.

StevePhoto wrote in post #15882172
Why would the definition of "commercial use" as it pertains to photography deviate from the plain, simple meaning of the words? Commercial use of photography means engaging in commerce with the photography. Engaging in commerce means exchanging the photography for something else of value. Selling prints is clearly engaging in commerce. Selling prints is clearly not a "personal use" of the prints. If someone calls their photography fine art and then sells it they are still engaging in commerce and that is still a commercial use.

Just because someone sells a photo does not make it commercial use. Commercial use is advertising. Selling prints is not considered commercial use. Why else do you think people are able to sell street photography without model releases?

Ratjack wrote in post #15882212
Just because someone sells a photo does not make it commercial use. Commercial use is advertising. Selling prints is not considered commercial use. Why else do you think people are able to sell street photography without model releases?

I'm not sure who's correct but I like your answer because that's what I'm hoping is the right answer. I should get a definitive answer from PPA today or tomorrow.

Just a note about fine art. Yes, it's considered fair use. But if you print out dozens of prints and hawk them outside the entrance to the Biltmore, you're crossing the line into commercial use in my opinion. But I'm not a lawyer.

Ratjack wrote in post #15882212
Just because someone sells a photo does not make it commercial use. Commercial use is advertising. Selling prints is not considered commercial use. Why else do you think people are able to sell street photography without model releases?

joedlh wrote in post #15882247
Just a note about fine art. Yes, it's considered fair use. But if you print out dozens of prints and hawk them outside the entrance to the Biltmore, you're crossing the line into commercial use in my opinion. But I'm not a lawyer.

That's not my intent.

Ratjack wrote in post #15882212
Just because someone sells a photo does not make it commercial use. Commercial use is advertising. Selling prints is not considered commercial use. Why else do you think people are able to sell street photography without model releases?

i believe there are two key differences. with regards to the street photography sold as art, the case in nyc that is generally referenced ruled for the photographer because he was selling only a limited number of prints; it was pointed out that if he had mass-produced the image (for example on coffee mugs or postcards), he would have had to have had a model release giving him permission to commercialize his subject's likeness.

the other difference is that the street photography is captured in a public space; the biltmore is a private space where the owner can decide what can and can't be done.