Private Property viewed from public streets

[Ed K.]

Ed Richards - a couple other thoughts -

If the building is the main subject of the photograph, as opposed to a member of a larger scene, and the work was not documentary or news in nature, it would seem like a good idea to get a release, no? And haven't there been some rulings about the use of telephoto lenses to cross over property as a sort of trespass? Also, wouldn't there be more leniency for a work that used the building in an artistic manner as opposed to a straight representation, provided that the image doesn't slander the owners or dilute / misappropriate somebody's trademark(s)?

I'd personally wish to get permission from the owner(s) before featuring a particular institution and its building, because even a decent threat of a lawsuit can be pretty costly. I'm pretty cautious about this stuff because I dislike lawsuits. I'm no lawyer; I just would rather limit troubles when possible. While asking first might get a "no", when it gets a "yes", it's at least courteous - I would ask first for that reason, and save some trouble later.

Many people who own smaller buildings will accept a print or a little money. The trouble with prints is that they often get used by the property owner in some way before the photographer can even get his/her act together to use them.

Would it be more safe if the work of the book were a documentary, with the photos as illustrations to a wider purpose? Also, if one publishes a photograph as news first, and then later reuses it for entertainment/commercial sale, does that help? The news channels do that sort of thing all the time even though I don't agree with it.

It would be interesting to hear your opinions on these additional flavors.

[Ed Richards]

Read the case I linked to. It will give you a pretty good idea of the issues. Telephoto lens cases are about pictures of people - we are talking about buildings. There is specific law on buildings that lets you take pictures of buildings. I do not like to encourage people to think they have a right to refuse to allow their building to be photographed, and I photograph a lot of buildings whose owners I do not want to meet.

[tim atherton]

a couple of useful posts:

http://www.photoattorney.com/2006/05...revisited.html

http://www.photoattorney.com/2005/04...s-when_23.html

http://www.photoattorney.com/2005/05...-vs-legal.html

http://www.photoattorney.com/2007/02...at-photos.html

[Brian Ellis]

Thanks for the cite Ed, there's clearly more to this subject than I thought. The following is from the ASMP legal tutorial:

"A property release says that the owner of a certain property, such as a pet or a building, has given you consent to take and use images of the property. You don’t need one for public property, such as government buildings (although you may run into problems just from photographing them, for security reasons). But for images of private property — and particularly of objects that are closely identified with specific people — you are safer if you get a release.

The releases you obtain should be saved forever and should be linked in some way with the photographs to which they relate. You can expect to be asked to produce them whenever you license an image, and you will need them if you ever have to defend yourself in court."

If I was planning a book of photographs of private residences as the OP here is, I'd try to get a release from every home owner whose home was photographed for the book. And if a home owner wouldn't give me one I wouldn't include his or her home in the book. I might be able to win a court case without a release based on the case Ed cites but I'd prefer to not have to go to court in the first place or if I did I'd sure prefer to show up with a release in hand. There's little glory and a lot of expense in becoming a leading case.

[Ed Richards]

As someone who is involved with the legal system, but who has some concern for society, rather than just for the well being of lawyers, my view is that is like giving in to terrorism. While I understand Brian's view, the more people who give in to illegal demands because they are afraid of being sued, the more freedom we give up. As photographers, we are under an onslaught of "privacy" laws intended to prevent all public picture taking. States are passing laws that I read as making street photography in public places illegal, or at least prevent the sale of any of the pictures. Many of us have encountered the clowns who say you cannot take pictures of bridges or other public structures because of Homeland Security - which, while nonsense, you better comply with because you might get hauled off to a secret prison for a while because they think you are a terrorist.

I am not advocating rudeness or trespassing, but there is a public component to life and I do not think we should encourage the idea that one can live in and benefit from society and fence it out.

[tim atherton]

Thanks for the cite Ed, there's clearly more to this subject than I thought. The following is from the ASMP legal tutorial:

"A property release says that the owner of a certain property, such as a pet or a building, has given you consent to take and use images of the property. You don’t need one for public property, such as government buildings (although you may run into problems just from photographing them, for security reasons). But for images of private property — and particularly of objects that are closely identified with specific people — you are safer if you get a release.

The releases you obtain should be saved forever and should be linked in some way with the photographs to which they relate. You can expect to be asked to produce them whenever you license an image, and you will need them if you ever have to defend yourself in court."

If I was planning a book of photographs of private residences as the OP here is, I'd try to get a release from every home owner whose home was photographed for the book. And if a home owner wouldn't give me one I wouldn't include his or her home in the book. I might be able to win a court case without a release based on the case Ed cites but I'd prefer to not have to go to court in the first place or if I did I'd sure prefer to show up with a release in hand. There's little glory and a lot of expense in becoming a leading case.

From one of the links I cited, which sums it up pretty well:

Photographers should stand up for their rights and not submit themselves to customary procedures that are not legally required. While it is safer to get a release, it is even safer to keep your camera in the bag. Don't let fear inhibit your photography

There's also a legal paper on the ASMP site somewhere (you probably have to pay for it now), which essentially says that while they often recommend property releases in such cases as this (specifically building/properties visible from and photographed from a public place), they can discover no legal requirement for them.

As I understand it, Lee Friedlander didn't obtain releases for the buildings in his massive tome of vernacular architecture "Sticks & Stones" - and he doesn't exactly portray a lot of the buildings in the most favourable light... (silmilarly for a number of other "urban condition" books I can think of)

[Ed Richards]

I do not think Lee Friedlander got releases for the people either, and there is pressure to make commerical sale of such images illegal. There is the news exception under the 1st amendment, but the courts have not extended this very far to protect fine art.

Ironically, we may get to the point that you can put anything on a blog as news but little of real life on the wall of gallery as fine art.

[tim atherton]

I do not think Lee Friedlander got releases for the people either, and there is pressure to make commerical sale of such images illegal. There is the news exception under the 1st amendment, but the courts have not extended this very far to protect fine art.

Ironically, we may get to the point that you can put anything on a blog as news but little of real life on the wall of gallery as fine art.

As far as people and permission go, I think the closest was possibly was that DiCorcia case in New York? which seemed very strong on separating art from commercial and determining it's protections, but also seemed (to my non legal mind...) to be based on a lot of specific NY law as well?

http://www.photoattorney.com/2006/03...ograph-is.html

(among many other links out there - some of which have a lot more detail)

[Brian Ellis]

"From one of the links I cited, which sums it up pretty well:

Photographers should stand up for their rights and not submit themselves to customary procedures that are not legally required. While it is safer to get a release, it is even safer to keep your camera in the bag. Don't let fear inhibit your photography."

As a lawyer I love people who make suggestions like this. Of course the writers who urge others to take risks aren't the ones who end up in court paying someone like me thousands of dollars to defend themselves. Kind of like the Generals behind the lines who scream "Charge!" at the Privates.

[tim atherton]

"From one of the links I cited, which sums it up pretty well:

Photographers should stand up for their rights and not submit themselves to customary procedures that are not legally required. While it is safer to get a release, it is even safer to keep your camera in the bag. Don't let fear inhibit your photography."

As a lawyer I love people who make suggestions like this. Of course the writers who urge others to take risks aren't the ones who end up in court paying someone like me thousands of dollars to defend themselves. Kind of like the Generals behind the lines who scream "Charge!" at the Privates.

I prefer all the lawyers who will sue at the drop of a hat...