Carolyn E. Wright |
Friday, November 28, 2014
In my last article, I told you about the photographers’ rights when it comes to taking pictures on public and private property.
Now I’m going to show you when and how to use a property release form — to get permission to take and use photos when the owner can legally stop you.
1. On private property: Trespassing is when you enter another person’s property without permission. It doesn’t matter whether you’re taking photos or walking around.
If you have permission to be on the property from the owner or manager, then your conduct while there can be limited by the owner/manager.
For example, a friend can invite you to dinner. You would reasonably have the right to sit at the dining room table and use the restroom. However, if your conduct went beyond what was expected in the home, such as digging through his bedroom drawers, then the friend could tell you to leave. You would no longer have the right to be on the property and would be trespassing if you remained.
In the same vein, if taking photos while you’re in the home appears to be acceptable to the owner, then you wouldn’t likely need specific permission to shoot. But if the owner doesn’t allow you to take photos on his property, then you can neither take nor use those photos in any way.
2. Other copyright works: A “derivative work” is a work based upon one or more preexisting copyright works, such as a painting copied from a photo.
The courts have been divided as to whether photographs of copyrighted works, such as a painting or sculpture, are derivative works.
For example, the Vietnam Women’s Memorial Foundation sued a company for selling refrigerator magnets bearing a photo of the Vietnam Women’s Memorial statue in D.C., which later was settled out of court. In another case, a photographer’s book containing photographs of graffiti was pulled from the shelves.
Another court held that a photographer had no right to register his photographs of toys because they were unauthorized derivative works of the copyrights in the toys. The court held that “without approval from the owner of the underlying [copyrighted] work, approval that was totally absent here, [the photographer] could not obtain a copyright over his derivative works.” But another court found that the photographer did not violate any copyrights when taking images of motorcycles with customized art work on them.
3. Pets/animals: Because pets and animals aren’t people, they don’t have the privacy or publicity rights that people have, as discussed in my article “Please Release Me: When to Use a Model Release Form.” So you don’t need a model release to take or use their photo.
While pets and animals may be considered property of the owner, no laws prevent you from taking their photos, as long as you aren’t trespassing or violating any other laws, such as those discussed here: “Stop! Don’t Shoot: Property Releases for Photographers.”
4. Trademark issues: You don’t need permission to take photos of things that aren’t protected by copyright, such as a hairbrush, an ordinary chair, a car, or a boat. But sometimes these items have trademarks on them.
Trademarks are words, symbols, packaging, colors, sounds, scents, or a combination of these that allow people to identify the source of goods or services. The issue is whether the use of the trademark causes confusion as to the source or affiliation of the trademark owner with the image. If consumers are likely to mistakenly believe that a photograph was sponsored by the trademark owner, then you infringe the trademark when you use a photo of a trademarked item.
One way to avoid this is to remove any trademarks from your photos, as it’s difficult to get permission from trademark owners for these types of uses.
When you need a property release, make sure it says that you had permission to be on the premises and to take the specific photographs of the property. Get the owner or manager to sign the release.
Good resources for learning more about the law for photographers on this issue include:
Tags: Carolyn E. Wright, Field Photography, Location Shoot, Photography, Photography Law
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