View Full Version : Liability Concerns About Photographing Buildings
Do you architectural photographers/lawyers have any anecdotal or legal informati on about the necessity for a release for photographing a private home? My situation is this: I have photographed houses -- I was usually standing on pu blic property (the street or sidewalk) at the time -- and they will soon be publ ished in a book. The publisher is concerned about being sued for violation of r ights of privacy & property, and had asked me to sign a warranty indemnifying th em against any claims to that effect. I have verbal permission from most of the homeowners, written releases from a few (including the owner of the house on th e book's cover), but there are a few who I am unable to contact for permission. Also, some have since died or sold their houses to new owners.
It has been my understanding that if you are using a photograph for editorial (e .g. educational) purposes inside a book, and did not trespass, you do not need a property release.
Keeping in mind that it will be impossible for me to obtain all fifty of the rel eases, what would you estimate is my likely liability exposure here?
I am not a lawyer, nor an expert, but from my real estate experience I do not see where you would have too many issues. Unless a home clearly shows the street address (where you might be inviting others to go to the home) or unless you are showing the owner's name on say a mailbox, I think you are probably entitled to 'fair use'. If I recall, it is similar to shooting a crowd or urban sidewalk shot where there are numerous people, but no one person is specifically the subject of the image. Also, I presume you are not using the photo to make fun, ridicule or embarrass the home owner.
I remember a building in Dallas in the mid 80's where the architect posted a sign saying that taking photos was illegal and against their claim of copyright. I can't imagine their being able to perfect a claim if the shot had been taken from a city sidewalk or street. Sometimes, I think narrow minded people cause more attention than if they did not pursue objections.
PS Tell us when the book is published so I can look for it at the bookstore!
Sandy...it could go either way, really. I'd be hesitant to say you'd be okay in the litigious society we live in today....when I think of editorial I think of newspaper usage, reporting etc. not necessarily a profit making venture. There's a fine line there for sure, because as you've said you weren't on private property when you shot it....I would suggest getting in touch with a lawyer who deals with this sort of usage...if you were in the ASMP, or NPPA, or PPA, I would say this would be the place to start...the fact that you're talking about liability insurance (and I usually think of this in regards to having an unforeseen accident occur on a shoot....like a light tips over & burns down your client's house...), means that you've been considering this a bit....the ASMP handbook may be a good place to look for some guidance...
David F. Stein
This is, I believe, is another good place to start: http://www.photosecrets.com/p14.html TRAVEL PHOTOGRAPHY AND THE LAW, suggests answers to some of your important questions
From the Photo Secrets web site.
David F. Stein
BTW: In the US, some buildings-as the article indicates-do have copyright!
1.) Don't take legal advice from people who are not lawyers. I am not one so I am not going to give you any.
2.) Books are not, as far as I can tell, editorial projects. Editorial means you are despinsing information for the common good. Books are published for someone -- you or the publisher or both--to make a profit. they are a commercial enterprise. you can call it what you like, but proving it may be an expensive matter.
3.) Certainly you are intelligent enough to have a lawyer who is reviewing your contract for you. Your publisher has one: You should too.
4.) Get some stiff liability insurance that specifically covers this possibility. Think of your lawyer as part of your insurance policy.
Move to a country that doesn't have such a monetaristic sueing mentality. ;^)
Sandy, I'd go with the advice to seek professional advice! Here in the UK it's okay to photograph buildings ( I think!!!!) as long as you do it from public rather than private property. In France, I believe that ALL public buildings are protected by a form of copyright!! but this is rarley enforced. I would assume that in your case as long as the owner gives you permission you are okay, but who knows?? I would have thought that most people would be "honoured" to have their homes etc immortalised on film, but I think Peter hit the nail on the head when he mentions the "sue them all" mentality that seems prevalent today. I wonder where we would stand if as a photographer we took photos of an abandoned building, you know the sort, all overgrown, dilapidated and moody......after all someone, somewhere probably owns it!! Go
Hi folks, I found a website (cni.org) about where there was a long, interesting discussion of these issues, by Google-searching on "permission to photograph buildings." The participants seem to be lawyers and law professors. Regarding copyright *by the architect* it is not an infringement to photograph a private home from a public place (street). However, there does seem to be room for another interpretation regarding the homeowner's rights. But I think I am OK with my project, because one lawyer wrote in saying that for a privacy infringement to be considered, the home would have to be strongly associated with the identity of the owner. "Certain homes are so famous and associated with their owners that an unauthorized picture used for commercial purposes may give rise under many states' laws to civil liability outside the realm of copyright." He cites a case where someone's well-known house appeared on the label of a can of house paint, unauthorized. I may also be somewhat protected by the notion "commercial purposes" since it will be a miracle if I make any money from a book of black- and-white photographs of unknown houses, published by a university press. I do consider my project educational, and never undertook it to make money. Still, I am considering looking into liability insurance. Thanks everybody.
sandy - two of the books i have had published by the oregon historical society included large numbers of photographs of private residences and commercial buildings. the lawyers for OHS assured me that there is no legal restraint on taking photographs of anything that is within clear view from public-owned property (anything you can see from the street is fair game). you do not need releases from any of those property owners.
As always the first thing you should do is contact a intellectual property attorney for a clear reading on the issue. Second, as an Architect I can tell you that the US Copyright Statute protects the architects drawings from unauthorized copying as well as the design against "copycat" designs by others.
There is nothing that I have read within the statute that precludes anyone from photographing one of my building and publishing it as long as you have photographed it in the public domain.
Seriously though, I would be pleased to have you photograph and publish one of my "monumental works".
Michael J. Kravit, AIA Kravit Architectural Associates, Inc. 902 Clint Moore Road Suite 136 Boca Raton, Florida 33487 561.893.0041
The things I am still troubled by is:
1.) Your publisher has a lawyer checking over their contract, and they are asking you to bear the cost of their legal defense and liabilities if they are sued. That is what an indemnification iclause does -- shift responsibilty from one party to the other.
2.) You are willing to sign this legally binding document that was written by lawyers without seemingly being willing to get a lawyers help in understanding what the document says. This is very foolish, but we all do it on a regular basis.
3.) Your willingness to advice from people who don't know the difference between simply taking a photograph and publishing that photograph.
4.) It doesn't make a difference if the bookventure makes a dime for you or not, it is still a commercial venture.
Now if your book is truly educational, let's say it is a how to manual, you might be okay. But once again: please check with a lawyer!
I am amazed about the learned advice which seems to be present on the topic!I am not a lawyer, but I came across this problem several times However, in Europe (UK, I am afraid, is a part of this too) Copyright law extends to buildings too, and that means 70 years after the death of the architect (the copyright will be owned for that time from his/her heirs). This is the theory, in practice, you can take a picture, get a permit from the author , maybe pay a little fee for this, or risk that they never know anything about it. Best asking a permit, my experience is that reactions are almost always positive.
I hear ya, but I am definitely NOT willing to sign the warranty clause the way it is without consulting lawyers, which is why I am soliciting advice and information about precedents via the web. The cni site I mentioned before has opinions about this by lawyers. I also have an excellent book by lawyer Mark Levine called "Negotiating a Book Contract." It tells me exactly what every line in the warranty clause implies. I am not at all happy with the clause, but it is possible if I don't sign it, my deal will fall through after many years of preparation. The publisher tells me they will not change a word of this clause. Therefore I am sifting through information from photographers and lawyers and architects to see all sides of this rather ambiguous issue, and evaluate my risk. I now think my risk of exposure here is pretty low.
It probably wouldn't surprise you to learn that many photographers just sign these book contracts without trying to change anything. I'm trying to change at least 40 phrases in the damn thing, based on advice from lawyer Levine and several photographers who have published.
What it comes down to is, a first-time author has no clout. I'm trying to act like I do, though!
It will be interesting to hear from you on how you ultimately make out with respect to this issue.
Take a look at the copy right statute on the US Copyright Office web page. I assume this is a US Copyright issue.
One quick obeservation, if it were illegal to photograph building in the public domain, then every book that just happens to show a building would need a release by the architect of that building. I imagine the same would be necessary for magazine publications and newspapers. This just does not seem to be the case.
As always prudence now can save you a lot of heart ache later.
Sorry Sandy, Obviously you are stuck between a rock and a hard place on this one. having you considered approaching the current owners ofthe property and getting them to sign a release in exchange ofr say, a print and a copy of the book? One thing to leep in mind is that the release then becomes part of the property of the house and if the house is sold the release is part of the property transfered to the new owners and remains binding, at least that is my understanding, so you should let anyone who signs such a release know that they should file it with the important papers relating to the house.
Sandy - I heartily agree with Pete Andrew's senitments. Really sad that we live in such a BS country (and that the rest are worse hardly excuses our failings)where everyone is snorting out a buck to the point where they're losing sleep over the possibility that somehow, somewhere, somebody may be "wrongfully" making a few dollars off what they think is there's. How times do you see worthless photos that are copyrighted? This goes all the way to the top where no doubt we have congressman (in the hip pockets of the entertainment industry) who think it's not fair that an American can travel to their public lands and enjoy it for free. The Nerve! How can Disney, et. al., compete against this? Gotta put a stop to this!
And the lawyers are partly to blame, but no more than the average American who seems to highly value their services. And all this propaganda about how the legal profession is essential for preserving our freedoms is a lie. For every lawyer that is fighting for the rights of the individual, there are ten who are working overtime for corporatate America or the Feds trying to enslave us. Read Jerry Spence and others if you doubt me, or better go down to the court house, get a DUI, get hauled into court to how the system really works.
I'd be willing to wager that this book will not make you rich, in fact it's probably just a way for you to make the rent, not exploit homeowners. That's the sad thing, anyone who would sue wants a piece of the action, when in fact it's probably not going to be that much. I have a friend who shoots for photo books and explained how little the money is, especially when you consider that the person writing the text receives far more, for much easier work (IMHO).
Todd, your point about writers is all too true. I was discussing a future book project with a packager and he suggested a moderately well-known writer we could use for the text, telling me to offer the writer $30,000 for the project. Did anyone offer me two cents for my 80-100 photographs? No way; in fact often a fine art photographer has to put in some of her own money to ensure decent production values. Gradually, we must assert our value in the marketplace. It's pretty hard, though, with so many photographers out there eager to do books for nothing, and with the public and publishers having little understanding of the worth of photography.
Ellis, yes, I've given most of them original prints. I can't offer them books (unless I buy them) because authors typically only get 10 or 20 free copies. I sent releases to some owners in the mail and not all of them responded. And, a few of the houses were abandoned and rural with no apparent address.
I am a layer (sorry Todd), but I don't practice in any field remotely close to the areas that your question touches on so please take the following with many many grains of salt. First, I don't understand why you're concerned with copyright law. You don't seem to be using any copywritten material, you're using your own photographs of the houses. A house as such can't, as far as I know, be copyrighted and you aren't using someone else's photographs, so what copyrighted material are you supposed to be using and who is supposed to own that material? I suspect that your publisher is concerned more with invasion of privacy and similar concepts rather than copyright violations (though your indemnification agreement may refer to copyright law in order to protect the publisher against the possibility that one or more of the photographs were made by someone other than you). The distinction between copyright concerns and invasion of privacy and similar concerns is important because copyright law is federal, whereas invasion of privacy and similar laws are usually matters of state law, so that if I'm correct anything you find on the internet is not going to be very useful unless it relates specifically to the laws of your state (again, keeping in mind that I don't practice in this area so possibly there's some copyright concern that I'm missing). FWIW, and it's worth very little, it has always been my understanding (derived from where I don't know) that a property release was needed in order to use a photograph of private property in a commercial venture though this may be only when the property is identifiable (such as if your photographs and/or captions identify the houses by address). Finally, and again only FWIW, I don't think the fact that you stood on public property to make the photograph is important. All that means is that the property owner can't sue you for trespass or something similar, but I don't think it affects the property owner's rights of privacy. I'd echo the concerns of others and urge you to seek the advice of an attorney in your state.
Try this guy, whose on the street photo list - just a thought:
Bert P. Krages Attorney at Law 621 S.W. Morrison Street, Suite 1300 Portland, Oregon 97205
Author of: Legal Handbook for Photographers : The Rights and Liabilities of Making Images <<http://www.amazon.com/exec/obidos/ASIN/158428059X/qid=991688126/sr=1 -2/ref=sc_b_2/102-8971438- 9216965>http://www.amazon.com/exec/obidos/ASIN/158428059X/qid=99168812 6/sr=1-2/ref=sc_b_2/102-8971438-9216965>
Brian and Tim, Thanks. I will look into those websites. Today I spoke with a lawyer who is very experienced with photographic book contracts, and also read another book on the subject. Brian, you'll see from my original question that I am not worried about copyright. (However, artworks like photographs and buildings designed by architects are inherently copyrighted without being registered, in the sense that another person cannot claim that work as his own. A photograph of a building does not fall afoul of that.) I am, however, worried about some all-encompassing language about privacy rights in the Warranty clause of my contract .
It seems pretty clear to me after all my research that the publisher will not change a word of his indemnity clause because his own liability insurance is based on it. Therefore, I have to make sure I am covered by obtaining releases, at least for those properties where I was not standing on public property. It does make a difference where you were standing because (the lawyer tells me) if you have only photographed what anyone can see with his own eyes passing by on a public street, there is no privacy issue. Makes sense to me.
Obviously it is better for me to have all the releases, then we wouldn't be having this discussion. But as I stated above, I can't get them all. I photographed thousands of houses for my book "Fifty Houses,", not knowing which fifty I would choose, and did not want to try to get releases every time. (As you all know, that taints the new relationship between photographer and subject/owner and makes it hard to gain their trust.)
BTW, today I also talked to a photographer who published a book of photographs of buildings for the same publisher I have. He did not get a single release, and he has not (yet) been sued or threatened.
I'm gonna sign the thing, but work hard to get the remaining releases. I do have a release for the cover photograph (the cover is construed as advertising for the book) and for a few where I stood on private property.
Please let me know when the book is coming out, I look forward to buying a copy.
"Fifty Houses" will come out in Fall 2002, it looks like. But it's not large format! Do you still want it? Well, I did use shift lenses on my Nikons. Like little view cameras....
I talked to the publisher today and will probably get a stipulation that if some nut sues us and I am found not to have violated my warranties, the publisher will split the legal costs with me. I'm pleased to get that concession.
> I'm gonna sign the thing
I think you'd best line up some sort of insurance for yourself for any liabili ty you may encounter as a result.
It does make a difference where you were standing because (the lawyer tells m e) if you have only photographed what anyone can see with his own eyes passing by on a pub lic street, there is no privacy issue.
Sandy, I am cetrainly not a lawyer and I hesitate to contradict a legal opinion you received from a lawyer but this just doesn't sound right to me. For instance if you snapped a p icture of me in clear veiw from a public place and then sold the image to Phillip Morris for the ir new cigarette add campaign I think I would be on strong legal ground if I sued. I don't really know how that changes when it's my house rather than my likeness
There seems to be some confusion when talking about privacy issues in that many people confuse intrusion with appropriation. Intrusion involves gathering information a bout somebody by physical or mechanical means. It has nothing to do with publication of the in formation. Appropriation, which is the real issue here, is the use of a person's name, like ness or identity for trade or commercial purposes without consent. Appropriation and intrusion are tw o of the four torts to which most states give common law recognition (The other two being Publ ic disclosure of embarrasing private facts and false light). The impostant point is that appro priation has nothing to do with intrusion, you can be liable for appropriation even in a publ ic place. The best defense from appropration claims of course is a release (or unidentifiable subje ct). These issues can get complicated because some states make distinctions that others don't. Fo r instance some states see a distinction between normal people and celebrities. Celebritie s seek out publicity and therefor shouldn't suffer emotional distress from public attention but on the other hand they can claim loss of income when somebody uses there image in a commercia l way. These nuances are where a lawyer that really knows his/her way around privacy la w can be very helpful. Good luck. I would be very interested to hear more ideas/opinions.
Brian Ellis wrote
"A house as such can't, as far as I know, be copyrighted " Objection - Form
Yes, a "house" can be copyrighted by an architect with respect to it's design and the architect's drawings. That is to protect the designer from someone else reproducing or copying the work for hire.
And yes, as far as I know as well, photographing a building in the public domain is NOT a violation of copyright.
BTW, an architects copyright extends to his death + 70 years after the date of publication. I think someone mentioned something to the contrary or at lease another number of years.
Yes I will pitch in on the various issues since you asked for my input. In no p articular order and with the usual disclaimers that this is not legal advice . . .
1. Buildings do not have privacy rights and do not legally require releases. Fu rthermore, the editorial/commercial distinction is not really the true form of t he legal analysis. Instead, the issue is whether you are appropriating the like ness of another in a way that implies some sort of sponsorship. A dentist who u ses a photograph of an actress to advertise his or her services his misappropria ting her likeness. The National Enquirer would not be if they used it to illust rate an article about aliens who go around disarranging the teeth of actresses.
2. Photographing a building does not infringe a copyright since photographs of b uildings are exempt from copyright protection by federal statute. Photocopying an architects drawings and including them in a book of houseplans without the ar chitect's permission would be an infringement.
3. Some cases have been brought alleging that photographs of buildings can infri nge an owner's trademark. These cases have been rejected by the courts although one court did hold that it is possible to trademark a building. However, the f actual circumstances needed to prove this are almost impossible to meet. With p rivate residences, trademarks are not a problem legally.
4. Publishers always insist on indemnities from authors since this is their best means of avoiding claims (authors are a lot more careful when they are on the h ook). Ask if you can be added as an insured on the publishers libel policy. Th is usually costs the publisher nothing and the worst they can say is no.
Issues such as the different forms of privacy rights, copyright and trademark pr otection, why simple releases are better, and how to handle jerks are covered in my forthcoming book that I am shamelessly plugging as Legal Handbook for Photog raphers : The Rights and Liabilities of Making Images <http://www.amazon.com/exe c/obidos/ASIN/158428059X/qid=991688126/sr=1-2/ref=sc_b_2/102-8971438-9216965>
My goal is to improve on its rating as Amazon's 1.6 millionth most popular book.
Hope this helps.
Thanks so much, Bert! I have just ordered a copy of your book.
Perhaps a bit late, but I finally found the section in the US Copyright Law that pertains to your situation.....
------------------------------------------------------------ 120. Scope of exclusive rights in architectural works65
(a) Pictorial Representations Permitted.-The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
Thanks Mike, and Bert, I just received your book from Amazon and have been reading it --- most useful. In case you want to know how my negotiations concluded with the publisher-who-shall-remain-nameless, I did have to sign the indemnity clause, but I got them to add a phrase stating that if there is a lawsuit, and I am found NOT to have violated my warranties, the publisher will split the legal costs with me. I'm reasonably satisfied with that compromise, and no longer terribly worried about my vulnerability to any legitimate claims. Now, we just have to work out serial rights.....
Thanks for all your input! Cheers, Sandy
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