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?:confused:

[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).

[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

[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.

[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/trademark/rock_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 (http://biotech.law.lsu.edu)

[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.

[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/property-releases-revisited.html

http://www.photoattorney.com/2005/04/know-your-rights-and-limitations-when_23.html

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

http://www.photoattorney.com/2007/02/david-shirks-at-goliaths-threat-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/editorial-use-of-persons-photograph-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...

[Ed Richards]

> 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.

It is the creation of risk through misleading the public about the law that really riles me. Unfortunately, the courts are not really very sophiticated about the law, esp. lower level state and federal courts. If enough "authoritative" sources claim that, well, you better do this because you could be sued, then the courts start to think it is true and are not willing to dismiss frivolous claims and sanction the lawyers who bring them

There is an interesting example with Good Samaratan laws for physicians rendering aid at the scene of an accident. (The belief that they would be sued probably came from a 1939 or so Dr. Kildare movie where Dr.Kildare was sued when rendered aid at an accident.) There was a standing prize for years offered by the AMA and ABA if anyone could find a single case where a doc who volunteered at an accident scene had been successfully sued. I am not sure they even found any where there have been suits. But the popular mythology because conventional wisdom and states starting passing special laws to protect docs who volunteered. In many cases, these created new legal risks and actually created a risk of suit.

[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.

BTW - the quote is from one of your fellow lawyers...

[David Louis]

A little common sense. If releases were necessary in the these situations the prints and books of many well know photographers would never have seen the light of day. Does anyone think Bernd and Hilla Becher received written permission from the owners of every building they’ve photographed over the years. No way! The same goes for Frank Gholke, Lewis Baltz, Joel Meyerowitz, Joel Sternfeld, George Tice, David Plowden, Steven Shore, John Divola, etc, etc, etc. The history of photography is repleate with photographic surveys of people, buildings, cars, billborads, dumpsters, vomit and just about anything else that can been seen from the street or road. All of it done without a release. I agree with Ed (I’m also an attorney); Go forth, be brave and shoot, and don’t use your photos in an advertisement. Your biggest risk taking a picture from the street is getting hit by a car, not a lawsuit.

[Dorothy Blum Cooper]

Interesting stuff...just wanted to comment that I appreciate the 'legal' insight from this thread. I do alot of street photography (have for many years) most which was for me personally.

The only time I've ever asked 'permission' was in photographing someone on their property. I've never been turned down...but know that I wouldn't want to be 'shot' on my front porch without permission. ;)

Thanks again for the info shared.

[Photojeep]

I am not a lawyer nor do I play one on TV but recently I was reading the copyright act (don't ask) and there is a specific section about buildings built after 1990 that are copyrighted. Now doesn't that mean one cannot shoot the building for commercial use because of violating the architect's copyright?

Just wondering...

[tim atherton]

I am not a lawyer nor do I play one on TV but recently I was reading the copyright act (don't ask) and there is a specific section about buildings built after 1990 that are copyrighted. Now doesn't that mean one cannot shoot the building for commercial use because of violating the architect's copyright?

Just wondering...

which section is that?

this is Section § 120

· Scope of exclusive rights in architectural works:

(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.

further notes on the The Architectural Works Copyright Protection Act of 1990 (part of the overall "umbrella" of copyright law in the US)

Limitations on Exclusive Rights

Congress inserted two limitations on the exclusive rights of owners of copyrights in architectural works. The "public place " limitation permits the unauthorized publication of pictures or other pictorial representations of buildings located in or visible from a public place. The "building owners " limitation permits a building owner to alter or destroy the building without the copyright owner's consent. These limitations acknowledge the need to protect authors of architectural works while recognizing architecture as a public art form and real estate investment as an important component of the economy. The 1990 Act also expressly permits the enforcement of state and local zoning, building, landmark and historic preservation codes which might otherwise impinge on a copyright owner's exclusive rights in architectural works.

[Photojeep]

Thank you for the clarification.

[PhotoAttorney]

Hi - Just joined the forum. This is the most intelligent discussion on this topic by photographers I have ever experienced!

In sum - rights of privacy/publicity for people are well recognized in the law. There is no similar protection for buildings.

Best,
Carolyn

[Kirk Gittings]

Carolyn, Welcome to the best photography forum on the web.

[Bill Koechling]

Max,

This is a very good reason for joining ASMP. We have on staff an intellectual property lawyer that is very willing to answer any and all questions such as this. He has been very helpful to me concerning just this same topic as well as release questions. He has also been happy to review contracts with clients and with stock photo houses. All of this is free to members.

Check out www.ASMP.org. The annual fee, approximately $300.00, is recouped in good legal advice alone.

Just a thought...

Bill Koechling

[PhotoAttorney]

Victor Perlman (the General Counsel for ASMP) is a great attorney and does great things for photographers (he is a leader in the fight against the Orphan Works Act). ASMP is an excellent association and a resource for a lot of helpful info.

Best,
Carolyn

[Ed K.]

I have a related question that's been bugging me for a long time:

So I have cityscapes, filled with the marvelous buildings literally "thrust" into the public's domain, and well, effectively blocking my view of the rest of the scene if I want it.

Okay, so no release needed for the buildings themselves, and none trademarked (well, probably none). A bunch of huge boxes with lights.

BUT, those lights have trademark art and trademark names all over them. Various banks, investment firms, legal firms. And, because I shoot large format, they are incredibly detailed.

I worry about them coming after me because their trademarks are so prominent, so striking, graphics, color and all. And sure, personally I believe that if they put them out in public view like that, there should be no problem if they become a part of my photograph, but that's just wishing.

What then? Do I have to use Photoshop to remove the trademarks? Can I simply let them stand and sell prints (ie. use commercially)? I can imagine that the owners might be as pieved with having their marks removed as leaving them on.

So, it's not the buildings themselves, but the signage on the buildings, or in some cases, even trademarked color schemes. Any thoughts from the experts on this?

[David Louis]

Ed K. - The simple answer is no - you do not have to remove the images - because, in a nutshell, you are not violating or impinging on their trademark.

[PhotoAttorney]

Right! The concern about having trademarks in photos is whether you infringe (confuse the customer as to the source of the product) or dilute (blur or tarnish) the trademark. It would be difficult for a trademark owner to prove that a trademark was infringed or diluted from being included in a cityscape photo.

Best,
Carolyn

[r.e.]

Ed,

Note that Carolyn is not in fact giving you a black and white answer. The DVD of the McMullen Bros. film Sidewalks of New York contains supplementary material that deals with this question. For a scene in a popular New York video store, they took down film posters from the walls and made sure that none of the videos available in the store was recognizable. Depends on what you are doing, and how much risk you want to take in terms of being sued. For personal work, I wouldn't sweat it. But my bet is that photographers doing high end commercial work for big clients do indeed have to concern themselves with these issues. Or rather, the client and advertising agency has to worry about it.

[Roger Krueger]

Things done on movie productions are horrible examples--to get distribution you need insurance, and to get insurance you need to do what the insurance company says, including getting releases and clearances in situations where they're clearly not needed.

The fact that these insurers pretend there is no such thing as "fair use" recently prompted this action to help documentary filmmakers:

http://cyberlaw.stanford.edu/node/5210

While publishing is a lot less monolithic world than film distribution, don't be surprised if some publishers make rather silly demands for releases as well.

[PhotoAttorney]

Unfortunately, fair use is a judgment call. When big bucks are involved, people tend to go to extremes (either with claims or being cautious).

Best,
Carolyn

[Joseph O'Neil]

Unfortunately, fair use is a judgment call. When big bucks are involved, people tend to go to extremes (either with claims or being cautious).


I think you the nail on the head - it's all about money. I help with out local heritage committee, and when we take pictures of historic houses from the street or whole streetscapes or residential houses as seen from the sidewalk, we've not had a problem, even when those images are used in books - such as "famous homes of our city" kinda thing, even though technically such books are "commercial endevours" or however you want to phrase it.

But I would bet dollars to donuts that if a movie studio came along and wanted to use the exact same shots for release in a commercial movie, yep, then you would have to have worry a lot about liability, releases, etc, etc.

joe

[Rafael Garcia]

As an architect and photography hobbyist I can tell you that there are owners out there that want to control images of their buildings and facilities to the extent of not authorizing photography by the architect himself. The rules above do apply and, unfortunately for architects, many of these spaces we would like to show potential clients are interior or not visible from public streets, so we cannot legally obtain images. An architect normally owns the documents (plans, specifications, etc.) for a design, unless he has given up those rights in his agreement with the owner (as when working with certain government agencies, etc.), but not the images of the completed work, nor the work itself, of course. While some architects attempt to copyright the design itself, this is not common and as far as I know is untested in court in the cases where it has been done. I am of the opinion it would not be successful, as the originality of any architectural design is impossible to prove.

The owner of the building or facility is the entity protecting his ownership of the building or facility in most, if not all, cases, not the architect. The architect benefits from distribution of images of his work, especially if the design is credited to him/her and not to the owner (who the majority of reporters credit - but this is a pet peeve of mine and a different subject!) or developer. We ourselves are frustrated frequently by not being able to shoot our own work.

[David Karp]

At one time I advised a construction company. We built a provision into the standard construction contract that obligated the client to allow photography of the structure, and included an obligation to allow reasonable access to a photographer to accomplish this. We also included a grant of usage rights in the contract. I never heard of a problem obtaining photographs after this.

Not all clients will agree, but many will, or will not even think about this issue during the contracting phase.

[William Francis Ahearn]

If private property is photographed as art illustrating a book no release from the owner is required unless the property has been named a national or local landmark. There is a cypress tree in Carmel California that is protected and the city charges professional photographers usage fees.

On the other hand if photographing scenic views were to be illegal, half of the postcard manufacturers in the world would be currently in litigation.

When in doubt, and concerned, ask permission to use the property photo in your wonderful book. Most people would be very proud.

William Francis Ahearn

[tim atherton]

If private property is photographed as art illustrating a book no release from the owner is required unless the property has been named a national or local landmark. There is a cypress tree in Carmel California that is protected and the city charges professional photographers usage fees.

William Francis Ahearn

Myth - I'm pretty sure

[tim atherton]

"When in doubt, and concerned, ask permission to use the property photo in your wonderful book. Most people would be very proud."

That's fine (and may very well be the polite thing to do). But asking permission for something where no permission is required can begin to set a precedent (See Ed's post http://www.largeformatphotography.info/forum/showpost.php?p=220505&postcount=21 among others in this thread). Next time they see someone photographing they will perhaps expect that person to obtain permission - probably even before they click the shutter.

And of course, what if the owners of the buildings which happen to be all the subject of what you consider your best photographs say no? Even though they probably have no right to say yes or no. What then?

[Joseph O'Neil]

If private property is photographed as art illustrating a book no release from the owner is required unless the property has been named a national or local landmark. There is a cypress tree in Carmel California that is protected and the city charges professional photographers usage fees.

-snip-

The bottom line is to check for sure in each and every city, as I imagine the laws do change and are not universal. However, even if you DO have the right to photograph a house from the street, I advise caution. Give you an exact example in my situation.

Here in my city, if a house or building has a heritage designation - that is, a plaque designating it as heritage designation under local city bylaw, on behalf of the city, i have a right to photograph that house - from the street only, not ever standing on private property.

But you find that can kinda freak people out, so unless I get specific permission, or unless thee house is very famous and/or a news item, I always take pictures of a city block in whole or part, so you are photographing a public street and the buildings on it, I never stand right outside the front of a house and start shooting. A public building like a church or a city hall or a large office building of historical note is usually a different story, I've not ever had an issue there.

So my point is this - even when you have 100% bona fide permission to do so, when it comes to a private residence, out of respect for the people living there, I always practice caution, and never stand in front of the house.

( ..or I use my 300mm tele-raptar and stand waaay down the street.... :) )

Another issue is this - there are some buildings I just would not want to photograph from the street in most circumstances. Two local examples are the Hell's Angels club house, and the General Dynamics factory where they build the Stryker armed personnel carriers. Unless you have very specific permission, my gut feeling is there are just some people in this world you don't wanna P O.

:)

joe

[David A. Goldfarb]

Myth - I'm pretty sure

Indeed, many years ago I made a photograph of the Lone Cypress like every other tourist who visits that spot, and there was no one standing guard. I don't imagine they could earn enough in licensing fees to enforce such an ordinance.

[Photomax]

Up until three years I ago I was a full-time photojournalist carrying a company press pass etc. I was pretty comfortable standing my ground while covering news assignments. These days I work for myself, covering more mundane things without any formal press pass.

A while back I was doing some experimenting and testing with my large format Sinar 4x5 camera. Just messing around with movements, Polaroids and exposing chromes etc (no real assignment, no client, no money.) Up on Queen Anne (Seattle) hill there is a large fancy condo building for the very well off. This is a beautiful building that once was Queen Anne High School. I thought this building would make a good test subject for the Sinar and 90mm lens.

I set up the camera on my tripod on the public sidewalk in front of the building. I made sure not to be standing on the grounds of the actual building. While I was fiddling with the camera under the dark cloth a car zoomed into the driveway and this guy walked over to me. He explained that a resident (inside her condo) had spotted me out there with my tripod and had called him to complain. This guy was the paid security person for the building. He must have been close as this all happened within a couple minutes. Anyway, he was VERY aggressive and explained that I had no right to photograph the building without permission. I explained my motives and that I was on the public sidewalk and was attempting to capture the entire building and grounds and was not zooming into folk's windows etc. He was not prepared for any kind of debate and said that it was a "private" building and I had to leave immediately. In the end I complied with his demands and took off rather than pushing the issue. It was just a test shot after all.

Still, this episode bugs me. What where my rights in this case? I know laws vary from state to state on these issues. Who had the law on their side on this issue? Myself or this security dude? I guess one of the reasons that residents of this building are nervous about tripods and cameras is that the media staked out the building during the Mary K Laterno mess: her attorney lives in the building...

Any thoughts?

Max

[Curt Palm]

If private property is photographed as art illustrating a book no release from the owner is required unless the property has been named a national or local landmark. There is a cypress tree in Carmel California that is protected and the city charges professional photographers usage fees.

On the other hand if photographing scenic views were to be illegal, half of the postcard manufacturers in the world would be currently in litigation.

When in doubt, and concerned, ask permission to use the property photo in your wonderful book. Most people would be very proud.

William Francis Ahearn

the lone cypress is on private property, and is an "official symbol" of the pebble beach golf resort. It is off of the seventeen mile drive, which requires a fee even to drive on. I think the golf resort has tried to prevent commercial photography of the tree but hasn't been successful. They have a trademark or at least tried to trademark the tree.
i think the latest set of owners have a more public friendly approach, perhaps because they are trying to build another golf course and a lot more homes, so they don't want to be seen as harassing the local art community

[tim atherton]

the lone cypress is on private property, and is an "official symbol" of the pebble beach golf resort. It is off of the seventeen mile drive, which requires a fee even to drive on. I think the golf resort has tried to prevent commercial photography of the tree but hasn't been successful. They have a trademark or at least tried to trademark the tree.

As I recall, the result of the Rock and Roll Hall of Fame case made it fairly clear you can't trademark an object like a building or a tree and photogrpahing such an object isn't a violation of a trademark. (note - I only play a lawyer on steam radio...)

What the pebble beach folks have tended to do in the past is try and prevent any reproduction of the tree - including even those done by painters from memory... - by threatening legal action.

There used to be a whole website about this somewhere. I'd also read that since Clint and or/his buddies took over the resort they've backed off - but that was a while back.

I know of one photographer a few years ago who had taken a photo years previously and it was used in some California travel magazine. The Pebble Beach Folks wrote him a threatening letter (and I think this was just after the RRHoF case). The photographers lawyer wrote back basically telling them to piss off - he never heard from them again.

[neil poulsen]

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 (http://biotech.law.lsu.edu)

I only know what I've heard from attorneys. And then, did I hear it correctly? That's always a question, too.

Isn't the distinction that's made is whether or not it's being used for advertising? For example, one can run into problems if a photographer's images are being used for advertising, versus selling them over the internet. The lawyers who I've heard always mention advertising as an important consideration.

Another wrinkle is whether or not the photograph is regarded as a copy of a building that itself has been copyrighted. For an extreme example, if one photographs a painting that's been copyrighted, and then sells that photograph as an art object, then I think they would run into problems. But in the case of photographing from a public street buildings with a copyrighted design, even then, I believe the courts have leaned towards the photographer.

For myself, I would feel comformatable selling images that included buildings taken from the street. But, I would not feel comfortable, and would avoid selling images that were going to be used for advertising, if I didn't have a release.

[tim atherton]

Another wrinkle is whether or not the photograph is regarded as a copy of a building that itself has been copyrighted. For an extreme example, if one photographs a painting that's been copyrighted, and then sells that photograph as an art object, then I think they would run into problems. But in the case of photographing from a public street buildings with a copyrighted design, even then, I believe the courts have leaned towards the photographer.

For myself, I would feel comformatable selling images that included buildings taken from the street. But, I would not feel comfortable, and would avoid selling images that were going to be used for advertising, if I didn't have a release.

there are some other issues, but broadly, regarding US copyright law, photographs of buildings explicitly don't violate copyright - see earlier:

http://www.largeformatphotography.info/forum/showpost.php?p=221241&postcount=26

[tim atherton]

Oh - the other wrinkle regarding paintings (of course it also depends on whether the painting itself is still protected - if it's old enough it isn't), but there's a strong case made - based on important (but slightly odd) recent case - that copy photographs of paintings don't meet the (fairly low) bar for being original enough to be protected by copyright in the first place... :-)

[Marko]

This guy was the paid security person for the building. He must have been close as this all happened within a couple minutes. Anyway, he was VERY aggressive and explained that I had no right to photograph the building without permission. I explained my motives and that I was on the public sidewalk and was attempting to capture the entire building and grounds and was not zooming into folk's windows etc. He was not prepared for any kind of debate and said that it was a "private" building and I had to leave immediately. In the end I complied with his demands and took off rather than pushing the issue. It was just a test shot after all.

Still, this episode bugs me. What where my rights in this case? I know laws vary from state to state on these issues. Who had the law on their side on this issue? Myself or this security dude?

Max,

There is a number of things you could/should've done in that situtation. First, you could've asked him for his creds, which he should produce in an "official" situation if he were legit. If he did, you should've written his name, company and id number down and then tried again to reason with him.

If he remained aggressive or refused to show you his id, you could've written down his car licence plate at the very least.

Then you could/should've called the cops and tell them you were physically threatened/assaulted. I have a feeling that would have calmed him down a lot.

:)

[gbogatko]

Ah. There are some lawyers here...

1. If I am sued by a party and that party knows or should have known that their suit had no merit, or the filed papers contain falsehoods, is that an "abuse of the court" and do I have small claims court recourse?

2. If a law enforcement official makes up law on the spot, has that official acted outside their authority? If their acts constituted a threat to my safety and physical person, could I then sue them personally in small claims court as they had stepped outside their "official-capacity" protected shell at that moment?

3. If someone not duly sworn as a law enforcement official threatens me in such a way as to make me fearful for my safety, do I have similar small claims court recourse?

Perhaps you're seeing where I'm headed here. If the above is true, then we DO have individual and affordable recourse against bullies. If we all started doing it on a regular basis, thing might change.

gb

[Ed Richards]

First, none of these are claims that will work very well in small claims court. I am not sure that they can even be brought in small claims courts in many states, but I am not an expert on this. It is hard to get redress for frivolous lawsuits, but some courts will fine the attorneys. Suing the law enforcement officer might let you get the ACLU to help, which make your suit a real threat. If someone threatens you, call the police. Do not give your next of kin a good legal claim.

[neil poulsen]

Another recommendation that's been suggested in other threads is to carry a copy, or representative copies, of the law and show it to people who are agressive in this manner. For example, carry a copy of national parks regulations when in the national parks. A copy could quote both the law and source. (Such and such paragraph of which version of the such and such law.)

Having spoken with Burt Krages a couple of years ago, prior to the most recent manisfestation of the patriot law, he said then that the only mention of photography in the patriot act from his reading was to make allowance for using (or purchasing?) photo equipment or photos for security issues. (Something like that.) There was no mention of taking photos of buildings from public streets. Anyway, if there is specific mention of photography in the law, have a copy stating what that is, so that it can be shown to aggressive officials.

Is there a reliable summary that exists of what one can and can't photograph under the patriot act (or other laws) that anyone knows of, one that's passed the scrutiny of knowledgeable attorneys? That might make a good start. I think our best defense against this kind of stuff is to have reliable knowledge of what is stated in the actual laws. So much of what I (we?) understand is anecdotal or hearsay.

[David Louis]

The simple answers are;

1- NO. Abuse of Process, Malicious Prosecution, “frivolous lawsuit” and other similar types of actions are almost impossible to sustain.

2- NO. Small claims court is not the appropriate forum for this type of claim.

3- Same answer as #2

[gbogatko]

The problem that is difficult to address in these situations is that the onus has been placed on the photographer to prove a negative. "Absence of proof is not proof of absence." If the regulations do not contain a provision for photography, this does not prove to the officer in the field that no such regulations exist.

We as photographers need to find some unambiguous way of "proving the negative" to the officers who will be in the field so they do not fall into this trap.

Having said that, my previous post is directed toward the situation where the officer "knew or should have known" that they were making up law on the spot. In that case, the question becomes has that officer stepped outside their protective lawsuit shield and can they be held personally responsible for their subsequent activity, including but not limited to placing you in fear for your safety -- a legal way of defining assault.

There is, for instance, a park ranger near the Brooklyn bridge who is known for being an aggressive bully. Were that officer or his superior to be handed a written statement, prior to your taking photographs, informing them that no law exists for them to enforce, would subsequent threats by that officer based on made up law be actionable, and if actionable, could that claim be made in small claims court. If so, how successful might that you be? If the chances are good, what would happen if many such individual actions were taken?

Now, I anticipate answers along the line of "nothing can be done so just suck it up," but I can't accept that. That's what the good germans said.

gb

[gbogatko]

Thank you David. I can see you've thought about this a lot.

I'm still interested in what the attorneys have to say.

>> Abuse of Process, Malicious Prosecution,
>> “frivolous lawsuit” and other similar types of
>> actions are almost impossible to sustain.

I would not have mentioned this if I were not aware of a small claims case (not me) that is going to counter sue specifically in small claims court for "abuse of the court" after the original case is completed. In this particular case, the papers filed by the plaintive contain bald-faced lies, which are provable as lies as they directly contradict the contents of a police report known to the plaintive and previously acknowledged as true. The lies are part of a "bury them in paperwork" mechanism in which my friend is being asked again and again after delay upon delay to respond to the lies in a vain hope that my friend will cave in. But, he's a surly b-----d and won't cave in. News at 11.

>> Small claims court is not the appropriate forum for this type of claim.

Yes, however my question is still whether or not it is a venue that would hold a chance of success against a bully given the cited circumstances. Its appropriateness is a different discussion.

gb

[David Louis]

I am an attorney, and I did not use the term “appropriate” in a discretionary sense, I used it in a legal sense. None of this, I repeat, none of this is, actionable in small claims court! The "abuse of the court" case you know about seems to refer to an issue that is already in litigation. Your fact pattern centers on things that happen on the street. You haven’t been arrested. You haven’t been given a summons or citation.

[Ed Richards]

> Is there a reliable summary that exists of what one can and can't photograph under the patriot act (or other laws) that anyone knows of, one that's passed the scrutiny of knowledgeable attorneys?

I hate to keep this thread going, but you miss the fundamental point about the national security law and the current environment: there are no clear guidelines, no list of what is OK and what is not OK. You can stand and fight, and perhaps become a case that will, years later, give us some guidence.

> Now, I anticipate answers along the line of "nothing can be done so just suck it up," but I can't accept that. That's what the good germans said.

I suspect you are either too young to remember the cold war, or have an overly nostaligic view of the 1950s and 1960s.

I am not saying I like this, but photographer's rights are way down the list of protected rights. People are much more worried about their privacy than about the rights of artists.

[gbogatko]

I accept Mr. Lewis's opinion as Gospel -- just wanted to find out what's possible (apparently nothing affordable).

>> I suspect you are either too young to remember the cold war...
HA! 62 this year. I remember my dad fuming at uncle Joe's witch hunts. 9/11 was our Reichstags fire. Trees and rocks don't shriek yet about Sicherheit des Vaterlands (I assume that's in the works), and I guess I can learn to say "für das Vaterland und das Reich" without throwing up.

gb

[Ed Richards]

Then just accept that we are back in the cold war.:-) (I teach national security law, and it is amazing to me how fast we got back to the cold war after 9/11.)

[Ralph Barker]

Every coin has two sides. Can you imagine the public uproar if Homeland Security did nothing to curtail recon photos by real terrorists, and someone stubbed their toe (or, broke a nail) on the debris from a terrorist bomb on U.S. soil? We live in a protect us from everything society, so it's a no-win situation for the government and police. Private security guards, I suspect, simply enjoy the opportunity to flex their authority in concert.