Who should request rights release?

Hi All,

Thanks in advance for any help or suggestions you have. Photography is not my main line of work, and while my paid projects are increasing, I'm looking for some advice from other who might have already "been there."

A few years ago I was paid by a construction company to take photographs of a recently completed project (a smaller library on a college campus). I retained the rights to these images.

Last week I was contacted by the manufacturer of the wall material (a type of tile) used in the project, and they're about using 1-2 of the photographs in the promotional materials / brochures used by their sales representatives and on their website. I think I have pricing in mind (used similar images from Getty as a benchmark - if this isn't a good benchmark could you let me know?).

Here's my main concern. The images for the initial job were not going to be used for anything other than to hang on the wall of the construction company HQ. The tile company wants to use them in a commercial manner. I know the college will likely need to release the rights for this type of use - should I deal with the college for rights release or have the tile company do so?

Any thoughts?

Thanks again for any suggestions, and if you need more info to fill in the blanks please let me know!

You said, "I retained the rights to these images."
So upon what are you basing, "I know the college will likely need to release the rights for this type of use."?

The Law vs Business caution

Legally the college has no rights over your image, regardless of how they are used - unless you entered into a specific contract with them that gave them rights. The concept of a release for physical property has no basis in US law at either state or federal level.

Of course people do sue when they have no legal basis to do so, which is why stock photo companies require a "property release" and why your potential client may prefer to have permission (unnecessary though it is) from the college. The only problem with this is that if you ask permission the college may decide not to give it or to charge a license fee (for rights they don't have). Given that such a situation could be time consuming and require legal expertise (and expense) it may be best to leave it to the tile company.

Good point - I am assuming the college will need to release the rights - I don't know this as fact. I guess whether they do or not is certainly important, but in your opinion should I be the one doing the legwork to find out if they do need to (and if so working with them to do so) or should my prospective client do this legwork?

Thanks again!

You should have two concerns here. 1) A negative reaction by your client the construction company and 2) A negative reaction by the college who owns the building.

You don't list your location or the college, but with the limited information you provide, I would say the risk of negative reaction is very low. In most cases I prefer to handle all legal and business aspects of licensing photos, but here I think the tile company would have an easier time with an informal approval from the College. Since you did not work for the College, they really have no idea who you are. Requesting a formal property release will probably cause more problems than its worth. The construction company should have no concerns since they hired the tile company.

Somethings should be handled by contract and lawyers, and other should be handled by a quick phone call.

Is the college a private or public college? If the college building is a government building you are in the clear on using the image.

It is public – a big 10 University.

You MIGHT need to be concerned if the college's logo (which is a separately copyrighted thing) appears in any of the images that the tile company wants to use.

Otherwise, you very likely don't need a release from the college. Even if their buildings are identifiable, you probably don't need a property release - this has been tested and there's case law out there. I can't find it right now, but there's a case where a bank used an image of a very identifiable bright yellow house in their marketing materials, and the owners of the house tried a half-dozen different theories but the court rejected them all.

There are a small handful of "copyrighted buildings" such as the Sears Tower which are exceptions to this rule.

This is the case that Nathan is referring too http://propertyintangi​ble.com …es-right-of-publicity.htm

Thank you all so much - you've been incredibly helpful!

Dan Marchant wrote in post #17667844
This is the case that Nathan is referring too http://propertyintangi​ble.com …es-right-of-publicity.htm

Thanks. I don't know why I couldn't find it; usually I'm better than that with the ol' internet search.

Trasmc wrote in post #17667139
should I be the one doing the legwork to find out if they do need to

No, no, no, no, no!!!!!
In fact, I wouldn't even discuss the matter with your client (the tile company) - it might cause the sale to be aborted, or at the least it could delay the sale.
Just be sure to have something buried in your fine print that says,

The publishing of these images in any form, and/or the use of these images for advertising or for any promotional cause, including any online use, may require that releases be obtained. The securing of any releases, if necessary, is the sole responsibility of _______________ (name client), whether they be model releases, or releases for physical property or releases for intellectual property.

This type of fine print, along with fine print covering many other topics, should be included in every contract you ever sign. What I do is to just copy and paste the big block of fine print from one contract to another, and then make adjustments/modificati​ons/additions as needed for each particular client/sale.

I know this is off topic, but another thing to include in your fine print involves third party use. Make sure that any time you license any images, that your client is not allowed to ever extend use of the images to any third party.

Tom Reichner wrote in post #17669737
I know this is off topic, but another thing to include in your fine print involves third party use. Make sure that any time you sell license any images, that your client is not allowed to ever extend use of the images to any third party.

http://asmp.org …terms-and-conditions.html