# Property releases?



## Exhibiter (May 15, 2009)

I going to try to sell photography at art fairs. I've decided on what I'm going to photograph, horses and barns.

Will I need property releases to sell the photographs.

Any help will be greatly appreciated.


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## Michael Ferguson (May 15, 2009)

My experience is with Getty images and they require a property release for more than you would expect.  I would say that if the barn is unique or identifiable as a specific barn then you need to go to the door and ask for them to sign a property release.  Technically same with the horse, but lots of horses look the same so unless the background or something makes the horse unique then you can likely get by without a release.


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## JE Kay (May 16, 2009)

Not sure about the barn part, I guess you would. I shoot a lot of old barns around here, SW Ontario but I don't sell the images.

As far as the horse side goes, I'm not sure about the US but here you'd better believe you can get into big time legal trouble for selling images of horses you just happen to shoot in paddocks or on property. You never know what the horse is. If you live in an area that has a lot of thoroughbreds, you may be photographing a 200K colt or filly that belongs to a well known owner/farm. That would be bad for you. I'd say if you want to shoot photo's of horses on someones farm, play it safe and ask them, in most cases you would probably find most people would be fine with it.


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## KmH (May 16, 2009)

Exhibiter said:


> I going to try to sell photography at art fairs. I've decided on what I'm going to photograph, horses and barns.
> 
> Will I need property releases to sell the photographs.
> 
> Any help will be greatly appreciated.


Only if you want to be on their property when you make the image. Get a copy of "Business and Legal Forms for Photographers" by Tad Crawford ($20 on Amazon)
In the USA animals don't have rights. The owners might if they have the animal registered as a trademark. That costs the owners serious money to buy a trademark. 

If you are on public property you can photograph pretty much whatever you want as long as you aren't using a long lens to shoot inside someones house. If you are on a public road you can take all the pictures of horses and barns you want and use them any way you want.

Getty wants a property release just in case, not because they need one. Getty wants the release to ensure every possible type of use for the image as do most stock houses and publishers.

You don't need a release to sell art images as long as they won't be used for commercial purposes, which means you retain the copyright since you are only selling your client a print.

I refer you to www.danheller.com (an attorney) for more information regarding model and property releases.
And to this right here at TPF.


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## Exhibiter (May 20, 2009)

I will be photographing on private property with permission of both the horse and barn owners.

The link to Dan Haller's site has been helpful. Thank you for that.

Thanks for the responses.


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## Phranquey (May 24, 2009)

Exhibiter said:


> I will be photographing on private property with permission of both the horse and barn owners.
> 
> The link to Dan Haller's site has been helpful. Thank you for that.
> 
> Thanks for the responses.


 
Then get the permission in writing to cover your butt, just in case.


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## KmH (May 24, 2009)

Phranquey said:


> Then get the permission in writing to cover your butt, just in case.


In other words get a properly executed property release.

Business and Legal Forms for Photographers by Tad Crawford or the Dan Heller web site may have an example.


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## skieur (May 24, 2009)

You do yourself and other photographers a great disservice by getting a property release when one is not legally necessary.

skieur


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## Exhibiter (May 24, 2009)

I am very suprised to see that you feel that way. Could you please explain why.


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## Phranquey (May 25, 2009)

skieur said:


> You do yourself and other photographers a great disservice by getting a property release when one is not legally necessary.
> 
> skieur


 


Exhibiter said:


> I am very suprised to see that you feel that way. Could you please explain why.


 
I'd like to hear this as well. It may not be legally _necessary_, but, what if, by some chance, a photo is taken that earns a bundle commercially. If the owner of said horse, barn, property, etc decides they want a cut of that money & sues, you will have a release in hand stating that you had full permission & rights to use that photograph as you saw fit....case closed. If you don't have one, it can become a legal battle royale.

Now, I will agree that if I see an interesting structure (barn, house, old schoolhouse, etc), I am not going to go tracking down the owner just to get permission to photograph from a public road.  But, if I were ever offered money for any of those, I certainly would return and get a release just so someone couldn't come back and say "Hey, that's my barn on the cover of that Americana book, I want something for that!!"


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## manaheim (May 25, 2009)

I am not an attorney, nor do I play one on TV.  However...

You can take pictures of anything you like, without release.  The only exceptions I are children who are inappropriately dressed and anyone with a reasonable expectation of privacy.  (so, getting up in a tree with a 400mm lens to take pictures of the ladies in the girl's shower... bad.)

You can even take pictures trodding upon someone's private property.  You may be guilty of _trespassing_... but the pictures are legal assuming they don't violate the above conditions.

Now, if you are taking pictures for _commercial_ purposes, you have a couple things you need to watch out for... namely trademarked/copyrighted works and people.  

If something is a trademarked or copyrighted work (such as, believe it or not, the Eiffel Tower), you may not use a picture taken of the item for commercial purpose without a signed release from the trademark holder.

If you take a picture of a person, you must get a signed release from that person (or from their parent/legal guardian in the case of a minor) before using the picture in a commercial way.  There are some exceptions to this (see Nussenzweig v. DiCorcia - Wikipedia, the free encyclopedia), but they're dodgy.  Best to get a release in these cases.

In your barn/horse situation...  you're totally fine.  Again, I'm not a lawyer, but I wouldn't think TWICE about selling anything from such a collection and I'd laugh my ass off at anyone who got weird and decided to sue me, and that's after getting over the shock of even having an image that warranted enough attention to have some random person notice I snapped a shot of their barn.

Seriously.  Don't worry about it.


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## fast1 (May 25, 2009)

well i think prevention is better than cure. although chances of anything going wrong is extremely slim, maybe you want to cover all angles?


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## manaheim (May 25, 2009)

fast1 said:


> well i think prevention is better than cure. although chances of anything going wrong is extremely slim, maybe you want to cover all angles?


 
Not sure. I'm of the mind that photgraphers need to continually be asserting and using their rights, or they will lose them.

Look at the case of the dude who sued the photog for taking his picture in the street. If that man had won his case, there would be precedent of people being unable to photograph people in public spaces, and that could be used as a basis for taking away the right nationally... which could be used as an example to do it globally.

Look at the Eiffel Tower...

Apply this same scenario across the board to all possible subjects and you start quickly reducing what you are allowed to point your camera at.

Rights.  Use 'em or lose 'em.


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## Phranquey (May 25, 2009)

manaheim said:


> Not sure. I'm of the mind that photgraphers need to continually be asserting and using their rights, or they will lose them.


 
I wouldn't argue with this statement in the least. My only concern is if photographs are used in a commercial application. Having been in the construction industry for over 20 years, one thing I can say for certain about anything....."GET IT IN WRITING".


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## skieur (May 25, 2009)

Exhibiter said:


> I am very suprised to see that you feel that way. Could you please explain why.



Sure, my experience with work related laws is that current practice whether legally necessary or not becomes part of legal judgements and codified into law.

Another way of putting it, is that if you do NOT use your freedoms and rights, then you will lose them.  Legally that is exactly what can happen, so encouraging such action (adopting an unnecessary practice) is a disservice to all photographers.

So, in general terms for most property photos, you do not require a release if you are using them in art related or editorial fashion.  For advertising purposes you DO need a release.
For unique and identifiable properties whether you have a release or not may be somewhat irrelevant, if its published use can be construed in any negative light.  To use an extreme example, if everyone knows the photo is of the mayor's barn and the angle you shot it from makes it look badly maintained and run down, it could be considered that you are indirectly defaming the mayor.  In another case of an irrelevant release, the photographer made the mistake of indicating the location of the unique property.  That caused a considerable increase of tourist traffic around the house and damage to the owner's property.

Bottom line is that property releases are not always necessary and will NOT necessarily protect you from liability.

skieur


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## raptorman (May 25, 2009)

manaheim said:


> If something is a trademarked or copyrighted work (such as, believe it or not, the Eiffel Tower), you may not use a picture taken of the item for commercial purpose without a signed release from the trademark holder.
> 
> In your barn/horse situation...  you're totally fine.  Again, I'm not a lawyer, but I wouldn't think TWICE about selling anything from such a collection and I'd laugh my ass off at anyone who got weird and decided to sue me, and that's after getting over the shock of even having an image that warranted enough attention to have some random person notice I snapped a shot of their barn.
> 
> Seriously.  Don't worry about it.



Some nitpicking, but the Eiffel Tower is not copyrighted anymore, the copyright expired 70 years after the death of the author. The problem right now is the lighting display that's copyrighted.

More important is that in several European countries (France, Italy, Belgium...) most buildings are copyrighted and you just can't take pictures of them and use them for commercial purposes without permission of the copyrightholder. It doesn't matter whether it is a barn in the countryside or a famous building. Almost all copyrightholders don't care and sueing will never cross their mind. You might just happen to take a picture though of a building where the copyright belongs to someone sue-happy like (the successors of) Andre Waterkeyn (Atomium) and then you have a problem as you'll most likely lose the case.


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## skieur (May 25, 2009)

raptorman said:


> manaheim said:
> 
> 
> > If something is a trademarked or copyrighted work (such as, believe it or not, the Eiffel Tower), you may not use a picture taken of the item for commercial purpose without a signed release from the trademark holder.
> ...



The Eiffel Tower lighting display is NOT copyrightable, whether they would like it to be or not.  To be copyrightable the work MUST be in a PERMANENT and SUBSTANTIVE form, and that does NOT apply to any light display.

Photography does NOT violate any building copyright, so there are no special rules related to shooting such buildings.  It is written in such laws.

skieur


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## raptorman (May 25, 2009)

skieur said:


> The Eiffel Tower lighting display is NOT copyrightable, whether they would like it to be or not.  To be copyrightable the work MUST be in a PERMANENT and SUBSTANTIVE form, and that does NOT apply to any light display.
> 
> Photography does NOT violate any building copyright, so there are no special rules related to shooting such buildings.  It is written in such laws.
> 
> skieur



I don't want to be rude, but what's your experience on copyright law and intellectual property law in Europe, or even with law in general? 

Under Belgian, French, Italian... law a light display is copyrightable. For a work to be copyrightable it should has an original (not in the "never done before" meaning though) shape and a tangible shape. What does not matter at all is how long it lasts, whether it's finished, whether it's new, whether it has any artistic value... Copyright law protects a lot (for some people too much) and is therefor often called a safety net for when you can't get any other IP right on your creation.

Photography does violate the rights of the copyrightholder. One of his exclusive rights is the right of reproduction (just to give an example on how broad reproduction is, your webbrowser caching a picture from TPF is considered a reproduction, although one of the exceptions where it's allowed). A photo is considered a reproduction (there exists many jurisprudence that confirms this) and therefor you need permission of the copyrightholder (there are exceptions, but none that say you can use the picture of a copyrighted building for commercial purposes. Another example of an allowed reproduction is for personal use, like a photo-album)


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## skieur (May 25, 2009)

raptorman said:


> skieur said:
> 
> 
> > The Eiffel Tower lighting display is NOT copyrightable, whether they would like it to be or not.  To be copyrightable the work MUST be in a PERMANENT and SUBSTANTIVE form, and that does NOT apply to any light display.
> ...



The Berne Copyright Convention and the Copyright laws of various countries uniformly define a "work" as the expression of an idea in "fixed form".  A light display is not a fixed form.  It is that simple.

Building copyrights refer to architectural design and violating the copyright on a building means physically reproducing the design in another building.
There is an exemption in building copyright law that indicates specifically that photography does not violate any architectural copyright.  I have read the laws and it is there and specific.

skieur


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## skieur (May 25, 2009)

*Some more exceptions for photographing architectural works and publicly displayed sculptures and works of artistic craftsmanship*
							Copyright Act:  

32.2 (1) It is not an infringement of copyright... 

(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work 

(i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or 

(ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

The Canadian act, but since we are part of the Berne Convention, it is the same in the U.S. and other countries.

skieur


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## Exhibiter (May 25, 2009)

skieur, thank you very much for response. I had not thought of it that way and it does make sense.

We all need to be careful of the rights we have lest we lose them.


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## manaheim (May 25, 2009)

From wikipedia...

"
Images of the tower have long been in the public domain; however, in 2003 SNTE (Société nouvelle d'exploitation de la tour Eiffel) installed a new lighting display on the tower. The effect was to put any night-time image of the tower and its lighting display under copyright. As a result, it was no longer legal to publish contemporary photographs of the tower at night without permission in some countries.[24][25]
The imposition of copyright has been controversial. The Director of Documentation for SNTE, Stéphane Dieu, commented in January 2005, "It is really just a way to manage commercial use of the image, so that it isn't used in ways we don't approve." However, it also potentially has the effect of prohibiting tourist photographs of the tower at night from being published[26] as well as hindering non profit and semi-commercial publication of images of the tower.
In a recent[_citation needed_] decision, the Court of Cassation ruled that copyright could not be claimed over images including a copyrighted building if the photograph encompassed a larger area. This seems to indicate that SNTE cannot claim copyright on photographs of Paris incorporating the lit tower.
In some jurisdictions, this claim of copyright is explicitly disallowed. For instance Irish copyright law, works "permanently situated in a public place or in premises open to the public" may be freely included in visual reproductions[27]; similar laws exist in Germany (see Panoramafreiheit)."

Eiffel Tower - Wikipedia, the free encyclopedia


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## Jon_Are (May 25, 2009)

> so, getting up in a tree with a 400mm lens to take pictures of the ladies in the girl's shower... bad.



Damn.


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## manaheim (May 25, 2009)

Jon_Are said:


> > so, getting up in a tree with a 400mm lens to take pictures of the ladies in the girl's shower... bad.
> 
> 
> 
> Damn.


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## raptorman (May 26, 2009)

skieur said:


> *Some more exceptions for photographing architectural works and publicly displayed sculptures and works of artistic craftsmanship*
> Copyright Act:
> 
> 32.2 (1) It is not an infringement of copyright...
> ...



There's a saying overhere that goes like this: there's only one thing worse then a lawyer and that's a wannabe lawyer. You can't imagine how many times people lose money or screw up due to advise from someone who thinks he knows the law. We see it every week... Wouldn't you feel bad if people get sued and lose the case because they followed your advise?

Now back on topic, first a basic law principle:
It's not because countries are part of a convention that all law regarding the subject of the convention is the same in all the countries. This can be easily demonstrated by the Berne convention:

_art. 2 (4) It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts. _

One country will go for protection A, another for protection B...

_art. 2 (2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form._

This is interesting for this discussion as it proves your "fixed form" point wrong. The principle is that you get protection for fixed form and non-fixed from creations, the exception is that countries can decide to not protect work that hasn't some material form. Even in these countries it'll be up for discussion whether a light display is considered material or not.

Now we'll have a look at European copyright law (Directive 2001/29):

_Article 2

Reproduction right

Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a) for authors, of their works;_

Notice here the "by any means and in any form": you don't have to build the Eiffel Tower yourself to have a reproduction. Paintings, photos... are all reproductions. 

_Article 5

Exceptions and limitations

2. Member States *may *provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:

(h) use of works, such as works of architecture or sculpture, made to be located permanently in public places;_

Again, the rule is that it's not allowed, the exception (which should be written in law) is that it is allowed. Such a law does exist in the UK, Germany and a couple of other countries. It does not exist in Belgium, France, Italy and a couple of other countries. An interesting sidenote is that in Belgium and France your picture can contain a copyrighted building, if it's only a marginal part of your picture (example: a picture just containing the Eiffel Tower is not allowed, a skyline of Paris that includes the Eiffel Tower as a small part of it is allowed)

I hope this clears up a couple of things for the people reading this thread.

One last word of advise, excersise your right when you have one, not when you think you have one. Because you can't lose a right you don't have, you can only get in troubles.


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## manaheim (May 26, 2009)

^^^ I seriously hope you're a lawyer, otherwise you just maimed yourself with the same hammer you just bashed skieur with.


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