Liability Concerns About Photographing Buildings

[Sandy Sorlien]

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.

Cheers, Sandy

[Ellis Vener]

Please let me know when the book is coming out, I look forward to buying a copy.

[Sandy Sorlien]

"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.

[John Hicks]

> 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.

[Mark Meyer]

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.

[Mike Kravit]

Brian Ellis wrote

"A house as such can't, as far as I know, be copyrighted " Objection - Form

Brian,

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.

Mike

[Bert Krages]

Hello Sandy.

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.

[Sandy Sorlien]

Thanks so much, Bert! I have just ordered a copy of your book.

Cheers, Sandy

[Mike Kravit]

Perhaps a bit late, but I finally found the section in the US Copyright Law that pertains to your situation.....

Mike

------------------------------------------------------------ 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.

[Sandy Sorlien]

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