Private Property viewed from public streets

[max mayfield]

I am currently working on self-publishing a photo book on the New Jersey shore resort town of Cape May. Most of the pictures are of the victorian architecture of the town. They are all strictly taken from the street. Would I need a release form from each property owner or Bread & Breakfast Inn that appear in the photographs?

[Ed Richards]

Nope. So far Congress has resisted changing the copyright law to cover pictures of buildings. Just do not try to BUILD a copy.:-)

[Brian Ellis]

Nope. So far Congress has resisted changing the copyright law to cover pictures of buildings. Just do not try to BUILD a copy.:-)

Ed probably knows more than I do but that sure wasn't my understanding. While photographing from the street avoids an arrest for trespassing, I thought you needed a property release from the property owner before using a photograph of the property for commercial purposes. I don't see it as a copyright issue, copyright has to do with unauthorized use of other people's images. Here you aren't using anyone else's image, you're using your own but it's for commercial purposes and it's of someone else's property. I think you need a release but I wouldn't argue with someone who knows more than I do about the subject (which means most people).

[Gene McCluney]

I own a weekend home in a Victorian style village in Arkansas. A couple of years ago there was a low-budget movie that selected the street my house is on for their production. They sent me a release to sign. I called and inquired, saying, if they were not actually going to be ON my property that I didn't see the need to sign anything. They told me they had to have a release even if the property was just shown in passing as the camera panned. I had no problem signing. Of course, this was a specific production, where people (we assume) got some pay for working.

As a still photographer, I have never felt the need to get permission to shoot architecture that is visible from public sidewalks and streets.

[D. Bryant]

Ed probably knows more than I do but that sure wasn't my understanding. While photographing from the street avoids an arrest for trespassing, I thought you needed a property release from the property owner before using a photograph of the property for commercial purposes. I don't see it as a copyright issue, copyright has to do with unauthorized use of other people's images. Here you aren't using anyone else's image, you're using your own but it's for commercial purposes and it's of someone else's property. I think you need a release but I wouldn't argue with someone who knows more than I do about the subject (which means most people).

Brian,

AFAIK, you are correct. Images of property cannot be used for commercial use without the owners permission.

Don Bryant

[Ed Richards]

While I am not teaching intellectual property law these days, I checked the books and there has not been a change in this law since last I looked. I have the lead case on my law site:

http://biotech.law.lsu.edu/cases/IP/...k_and_roll.htm

It is worth reading. This is probably the best case for the building owner - the photographer was selling posters of a very distinctive building, the Rock and Roll Hall of Fame. Despite that, the court ruled for the photographer. I doubt that movies are different, but they run scared of anything that might hang up the release of the movie.

You might cross the line if you used the photo to put the building in a false light - perhaps some photoshop work that made the B&B look like a whorehouse.

[Greg Lockrey]

If the book is documentary in scope, would that make it "commercial"? If you used said photo in an ad campaign, that would be commercial. Now Ed should know, he is an attorney isn't he?

[Ed Richards]

Commercial is OK, as I noted, the case is about a photographer selling posters of the building, which is about as commercial as you get.

> Now Ed should know, he is an attorney isn't he?

Law professor

[David A. Goldfarb]

Well, I guess there's commercial, as in selling photos of the building, and commercial as in using the photos as part of an advertisement for something else, like say someone used a photo of the Rock-and-roll Hall of Fame in an ad for a record store chain or a radio station. Is there a distinction to be made there, Ed?

[Ed Richards]

What the court looked at is whether the photographer was infringing the trademark of the building. So if the ad looked like the Rock and Roll Hall of Fame was associated with or was endorsing the product, it would be a problem. But this depends on the special nature of the building being a trademark, separate from the design of the building. A historic inn that was known for its distinctive look could pose the same problem, if it was trademarked.