Liability Concerns About Photographing Buildings

[Mike Kravit]

Sandy,

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".

Good luck,

-Mike

Michael J. Kravit, AIA Kravit Architectural Associates, Inc. 902 Clint Moore Road Suite 136 Boca Raton, Florida 33487 561.893.0041

[Ellis Vener]

Sandy,

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!

[andrea milano]

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.

[Sandy Sorlien]

Hi Ellis,

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!

Cheers, Sandy

[Mike Kravit]

Sandy,

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.

Regards, Mike

[Ellis Vener]

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.

[Dick Clark]

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).

T

[Sandy Sorlien]

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.

Cheers.

[Brian Ellis]

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.

[tim atherton]

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

krages@teleport.com

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>