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Exploring editorial vs. commercial use of images

From: Photography and the Law: Photographers' Rights and Releases

Video: Exploring editorial vs. commercial use of images

Ben Long: I know there are also location releases. Property releases Property releases, yes, so what's that about? Caroline Wright: There is the fear of being sued in the United States. I don't wanna be sued, and so there's really these property releases that have been created for which so far, there has really been no purpose for it, legal purpose for it, except for trespassing. You're really using a property release to say I have the right to be on this property and to shoot.

Exploring editorial vs. commercial use of images

Ben Long: I know there are also location releases. Property releases Property releases, yes, so what's that about? Caroline Wright: There is the fear of being sued in the United States. I don't wanna be sued, and so there's really these property releases that have been created for which so far, there has really been no purpose for it, legal purpose for it, except for trespassing. You're really using a property release to say I have the right to be on this property and to shoot.

Ok That's really all that matters. This is recently been tested by a very interesting case. On Lombard Street in San Francisco, the very colorful houses. Ben Long: Curviest street in the city. Caroline Wright: Yes, right, in the United States. A photographer took a photograph of one of the houses. It's brightly colored, easily identified. This photograph of this house was used to advertise mortgages. The property owner sued, because people started asking "well did you need a mortgage, are you in financial trouble, what's going on", and he sued under seven principals of law in the state of California, and lost every single one of em'.

As we talked about expectation of privacy, and we talked about rights of privacy, rights of publicity, that only extends to people and while there may be a very close affiliation between this owner that a lot of people knew that this guy owned this particular house, there are no recognized rights under law that this photographer violated. The photographer was on the street, he wasn't trespassing, he didn't violate any trademarks, he didn't invade the owners privacy, he did nothing wrong.

Ben Long: There's no sense that the house and the way that he chose to paint it and decorate it is a creative work that could be protected under copyright or anything like that? Caroline Wright: No, while paintings can rise to the level of being creative works and copyrighted works have to have a certain level of creativity before they're protected by copyright law. No, there's no protection under that house and they certainly didn't sue under copyright law, first of all, but they sued under more of the violation of privacy and the rights of the owner.

The owner was upset that his photograph of the house was being used to advertise mortgages. Ben Long: Interesting, what's the usage for shooting in national parks, so we talked about what I can shoot, but what can I do with those pictures when I take them away? Caroline Wright: In national parks, unfortunately a lot of photographers have been hassled. If you look like a professional photographer, in a national park, many times you're gonna be hassled by park rangers. They're going to say you need a permit for that and there are permit requirements in national parks, but it's for when they're going to have a set, and models, and disrupt the flow of the national park.

Then a permit is required, but for the normal, everyday average wildlife photographer, or nature photographer, landscape photographer, you don't need a permit. It doesn't matter whether you're planning to sell copies of your photos, license them, use em' for commercial purposes. You do not, under the law, federal law, you do not need a permit. Unfortunately, park rangers just seem to have a problem with professional looking photographers, so if you have a big lense or a tripod, it raises a red flag and the park ranger wants to come in and say "you need a permit for this", or they'll ask you, "What are you going to do with these photos? "Are you going to use them commercially?" A lot of photographers are honest and they say well yes, oh then you need a permit.

It's not true. Ben Long: They're saying yes because they're hoping to make a nice print then sell it. Caroline Wright: Correct Ben Long: Not that they're gonna use it to advertise cooking oil or something. Well they could though. That's still legal and they can advertise anything they want with it. It's still legal, the national park's do not get a cut of that. It's federal lands and a permit's not required. Unfortunately, a lot of photographers, nature photographers, have been told by park rangers that they can't shoot there or need a permit and that sort of thing and it's been a real source of confusion for photographers.

Ben Long: Are we back to the case of in that situation you just chose whether it's worth it to fight it or not, how much grief can they cause you? Caroline Wright: There's been circumstances where they've made em' stop shooting, so ok you just move along. Ben Long: Right. Caroline Wright: They might try to charge you for a permit, so you just have to fight, and if you really just go up the chain, for the park ranger, maybe the park ranger's boss, maybe they'll know that a permit is not required.

Ben Long: Ok

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