Interesting "Property Release" Case

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.

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.photoattorn​ey.com …e-requirement-put-to.html

Nice Find. A case worth following I think.

There appears to be alot in play in this case. If they do prove that the copyright trumps the trespass laws (as I read into the blog post) it is going to cause some troubles down the road, imo.

This is indeed worth following.

ssim wrote in post #10086976
There appears to be alot in play in this case. If they do prove that the copyright trumps the trespass laws (as I read into the blog post) it is going to cause some troubles down the road, imo.

This is indeed worth following.

They didn't say that copyright trumps trespass, they said that copyright trumps "conversion." Trespass and privacy were dismissed because the claims of the plaintiff in this particular case did not meet the state legal requirements for those two offenses.

If we presume in a future case that a photographer did not trespass (he took the image from a public area) and did not invade personal privacy (it has been established in the US that neither property nor corporations have privacy--this speaks of the privacy of a human being), the the only complaint left is the argument that the photographer should not profit from the use of property belonging to someone else. That is the "conversion" law. But this court stated that:

A. "Conversion" only applies to tangible property (proven by earlier case law and legislation),
B. The only tangible property involved in this case is the photography,
C. Only copyright law governs the disposition of photography

Therefore, the federal law governing copyright take jurisdiction.

Now, over in California there is a growing concept that "image" is real property (that's the home of Hollywood, remember), and California has already passed a state law that a person's image is real property that can be inherited and protected like any other real property. I suspect that lawyers in California, at least, would mount a challenge to this to make any image of a person's property also that person's property.

This doesn't solve the problem that stock houses typically require a property release, so the federal law situation doesn't affect it.

Very, very good post. Thanks. Important case worth following.

Almost addresses a problem I have with some images. Not legal problems, but a hesitance to use sellable images that were taken with permission, but may still cause me to be sued.

As to the Calif. lawyers, as I understand it the images of stars, sports pros, and other VIPs can be trademarked so I can understand the protection of "image" there (the person).

However, one would think it might be a stretch to convince the court that the way one decorates the exterior of a home (for example) that can clearly be seen from a public place constitutes an image trademark. If that were the case, then the way one custom-trims a hedge would constitute a protected image which seems sort of ridiculous. But I'm not a lawyer, so who knows.

I'd like to see that get to the Supreme Court. The legal issue right now is between the estate of Marilyn Monroe and a number of photographers who have images of her with signed full model releases obtained when they took the original photographs. The photographers want to use the images commercially--which they were able to do while she was alive--but are now being blocked by the estate with the claim that her virtual image (not just any particular photograph, but her image as a concept, including artistic renderings) is property owned by the estate andnow need further releases from the estate.