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Photography Question 
Nanette B. Stephens
BetterPhoto Member Since: 7/8/2005
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Permission For Shooting Old Barns, Buildings, Etc.


I also love to drive around and shoot shots of old barns, buildings, silos, etc. My question is, I took pictures of some old barns which have since been torn down, and I took pictures of old barns where the house was burned and gutted and no one was living there. Can I sell these pictures without permission? Thanks.


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10/17/2006 9:05:07 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  No No Nanette !!! You have to exercise what's referred to as due diligence to find the owner and obtain a release and record the efforts you made to do so. Chances the owner info would be easily obtained by contacting the local fire department and giving them the street address. Look for a real estate agent sign or something like that. Also going to the county recorders office would probably help you find the legal owners right away because they have to receive property tax bills for the land, even if it has no buildings on it anymore. This is probably a lot easier than you might imagine.

BTW, since the embers cooled, this is no longer a newsworthy item whrein the news exception and the public right to know would probably apply WHEN IT HAPPENED.

Okie dokie?
Take it light.
Mark


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10/17/2006 5:26:33 PM

 
Raymond H. Kemp
BetterPhoto Member Since: 4/2/2004
  If the building or barns, silos, etc. are visible from public property such as a street, park then you are free to take the photographs and publish them without permission from the owner. Only in the case of “Right of Publicity” law which recognizes that a “person’s identity has economic value resulting the person’s creativity and efforts” is there an issue. But, that would mean the barn or silo would have to be distinctive and clearly identifiable as belonging to the owner. For instance, Lothar Motschenbacher’s right of publicity was violated when R. J. Reynolds made advertising use of a distinctive race car that was clearly identifiable as belonging to the famous driver ( June 2005, Andrew Berger, Copyright News You Can Use) .

Now I’ve seen some threads on BP that buildings are considered copyrighted and a release is required due to copyright protection. Although this is true as defined in copyright law under Architectural Works, this section of the United States Copyright Law exempts photography of buildings from copyright protection. (United States Code - Title 17 - Chapter 1 - Section 120 Scope of exclusive rights in architectural works – (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.)

Now let’s say you want to photograph the barns and silos and make say a 50 or so limited prints. And you want to put them in a frame and sell them at local craft fair for $1000 each. Since you are using the images in a limited number the courts have ruled that this is considered “art” and does not fall into the category of “advertising” or “trade” even though you are selling them for $1000 each. Photography expressed as art is protected by our First Amendment (freedom of expression). A great example of one of the rulings is the New York Supreme Court February 2006 ruling in Nussenzweig vs. DiCorcia.

In 2006, a New York trial court issued a ruling in a case involving Philip-Lorca diCorcia, who had set up elaborate strobe rigs on a New York City street corner and had photographed people walking down the street, including Emo Nussenzweig, an Orthodox Jew who objected on religious grounds to deCorcia's publishing in an artistic exhibition a photograph taken of him without his permission. The photo's subject argued that his privacy and religious rights had been violated by both the taking and publishing of the photograph of him. The judge dismissed the lawsuit, finding that the photograph taken of Nussenzweig on a street and sold for hundreds of thousands of dollars is art - not commerce - and therefore is protected by the First Amendment, even though his religion forbids it.

Manhattan state Supreme Court Justice Judith J. Gische ruled that the photo of Nussenzweig--a head shot showing him sporting a scraggly white beard, a black hat and a black coat--was art, even though the photographer took it surreptitiously near New Yorks' Times Square and then sold 10 prints of it at $20,000 to $30,000 each. The judge ruled that New York courts have "recognized that art can be sold, at least in limited editions, and still retain its artistic character. . . . First Amendment protection of art is not limited to only starving artists. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes."

For the most part your barn and silo photography will not get you into any privacy or copyright issues. But if you plan to shoot the barns or silo’s for advertising or trade and you are concerned that the barn or silo is so unique that it could clearly be identified as the farmers creativity, thus identifying the farmer and the farmer would incur an economic loss because of your photography, then get a release.

Good shooting!

Ray


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10/18/2006 12:03:01 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Yes Ray, we all know how you can photograph a building from the street and that's Ok. IT'S PUBLISHING THE PHOTO that raises a plethora of issues, none of which you addressed in your response which is generally just confusing. Any reasonably good lawyer can make an argument that a silo, outbuilding, home or any building for that matter in a photo is unique with unique, identifiable characteristics.

And there IS NO NEED for a property owner to demonstrate economic harm to collect damages for using an image of their property without their consent. This is one of the inherrent covenants that run with the land.

Still, Raymond continues to make some sweeping legal conclusions based largely on his own personal impression and not even a legal interpretation of the applicable case law. Perhaps we could refer to this combination of jurisdictional pieces as "RCA" (Ray's Code Annotated).

Nonetheless, he really gets too far afield of your original question which was specific and which I addressed, specifically and his preachings also mix law or exceptions to various statutes in an editorial publishing context when you were asking about commercial purposes of property photos. Moreover, the justifications for his interpretations go from discussing buildings to people to print sales of people to first amendments....blah !!!! It's really rambling nonsense, in my view.

Still, Nannette, Raymond hasn't given you a single viable exception to the rules I mentioned, which, btw, are intended to keep you out of court rather than embroiled in the kind of litigation he mentioned for all those cases that really don't even apply to your situation, even by analogy.

Oh, and did I mention, copyright laws are federal not state, and state courts don't have jurisdiction to hear copyright law cases?

While I'm sure he means well, and I'm glad he has more than a passing interest in this type of law, he's just not giving you the kind of legal advice that you should be relying on in any manner or form and afterall, he IS giving you legal advice.

So, if you doubt what I'm saying (and I'd not have the slightest hard feeling if you did) and which you certainly could doubt as I'm telling you to doubt what Raymond is saying, just call a lawyer who specializes in intellectual property and buy some of their time. I'd guess a half hour would do it, tops. You can find them by calling the Lawyer Referral Service of your local county bar association, regardless of where you live.

Meanwhile, my legal malpractice insurance covers me for providing such advice. If Ray isn't correct and you rely on his statements and are somehow injured I think he needs to ask himself how is he going to afford to pay for the damages? [You gotta be careful what you tell people in the context you're doing it Raymond because at some point someone is going to rely on some of your misinformation to their detriment. They're gonna get hurt, blame you and that would be unfortunate for you both. I say that not as a harsh criticism, but to keep you from getting jammed up.

And, that's MY story and I'm stickin' to it. ;>)
Mark



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10/19/2006 4:16:18 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
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  Nanette, The county recorder's office where I live has an online website where you can look up the records without visiting the office. You might try going online and seeing if the county you live in has such a thing as well.

To add to what Mark has mentioned, since I've been interested in stock myself I've been trying to get up to speed on the laws and from what I have read recently you can not sell the photo of a house, zoo animal, farm animal or anything that is someone else's property without getting a property release. I was surprised to read zoo animals are even included. How the devil is anyone going to be able to tell one meerkat from another or a Charolais steer in a pasture with hundreds? Mark, didn't you say a while back that even flowers have copyrights? I am going to take my chances with most flowers :o)!

Surprising too is browsing a stock or microstock site and seeing all the photos of barns, farm animals, zoo animals, people's private residences, and any number of things that could very well require a property release and to find it stated no property release. A lot of people are doing it anyway.

Would you guys mind listing what CAN be photographed and sold without paperwork?? It might be easier :D.


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10/19/2006 5:54:11 PM

 
Raymond H. Kemp
BetterPhoto Member Since: 4/2/2004
  When I responded to Nanette’s post AFTER you posted your recommendations, Mark, I had the decency, maturity and respect to you as fellow colleague in the business of photography not to insult or make judgment as to your background or experience to render the advice you gave Nanette. Something you clearly have decided not to give me.

I do disagree with your advice to some extent, but I at least I posted my recommendations with supporting annotation that supports my advice, documentation that is widely available and used in this industry. I might add that you have not backed ANY of your advice with any verifiable supporting annotation. So when you tell Nanette that she has to “exercise what’s referred to as due diligence” just what are you basing that on??? At least show us something to support that comment as I have done in my advice comment.

You must not have read my advice thread too closely. For instance, the part where you state “copyright laws are federal and not state” as if I was some sort of idiot. The legal code I used is straight from the UNITED STATES COPYRIGHT CODE!!! It’s clearly right there in my comment to Nanette!! Where in the hell did you interpret I was referring to some sort of State code??

I could go on an on about your immature and unprofessional reaction to my advice comment to Nanette, but I refuse to waste any more of my time with your insults.

Due to the business I’m in have taken the time and money to research privacy and publication concerns and have retained my own attorneys as well as consulted with the corporate attorneys from my publishers. All of which I might add support my findings. Every paragraph in my advice was carefully supported with annotations so that others could see what I was basing my comment on which is NOT giving legal advice.

This is the second time you have come after me after I posted a comment. If someone else gives an intelligent comment that may dispute yours, you seem to take it personally as it clearly shows in your response to my comment to Nanette. Mark, if you are going to continually respond to comments with advice that is not supported then be prepared for others to offer views that may question or challenge yours. I’m disappointed that a professional such as you could not have handled this matter in a more diplomatic manner.

Ray


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10/19/2006 6:08:56 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
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  I did have an honest question. I hope it didn't get lost.


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10/19/2006 6:56:28 PM

 
Raymond H. Kemp
BetterPhoto Member Since: 4/2/2004
  Sharon,

Your question as to what can be photo can be taken without paperwork depends on how the photo is to be used. If for editorial content “to inform or educate” such as an article for a newspaper, magazine or book, generally no release is needed. If for an advertisement though a release is usually required. Of course if you feel you are in a grey area, then try to obtain a release.

Here is a link that you might find helpful: http://www.kantor.com/useful/Legal-Rights-of-Photographers.pdf

Sorry for all this mess!

Ray


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10/19/2006 7:47:40 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
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  Thanks, Ray! I don't see myself trying to get releases for anything so I just try to avoid submitting photos to stock that requires one.


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10/19/2006 7:55:42 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Look Ray, I have no animosity towards you or anyone else around here. But I will say that the annotations you provide, even assuming for sake of argument that they're accurate, are meaningless here because you don't know what jurisdiction Nanette. It's a mistake in any legal argument to apply law from outside, say trying to apply a case from Manhattan to one in Arizona for two reasons: First, chances are that the Arizona Appellate Courts have ruled on that issue, or, second, if it hasn't, then the Ninth Circuit has. So while citing NY law, state or federal might be persuasive in your argument, it's NOT controlling and while the analogy in a law school class might be useful, her question was in the real world.

So, let's say that hypothetically Arizona and Ninth Cir. statutory and case law is, and it's likely distinguishable from NY on a number of grounds. So citing non-forum law is confusing to people, likewise meaningless, and certainly misleading to people who don't otherwise understand. Ask your lawyers. They'll tell you.

In addition, you're making the mistake nearly every first year law student or paralegal or even just a lay member of the public makes: To extract a portion of an opinion which is in fact what we refer to as "obiter dicta" and cite it as controlling law or the holding of the case, when it's either not the holding or it's distinguishable on several different grounds. Taking things out of context is not the holding of a case. Headnotes are not part of the opinion or holding in a case.

While I also sincerely appreciate your zealous devotion to the law, as for your giving legal advice, I think you need to read some case law on that as well. Reread your comments. You were telling Nanette that if she did so and so then she didn't need a release. That's not opinion. Or, assuming for sake of argument it could be construed as opinion, it was stated under the guise of fact. That's what I'm getting at. Where I come from, that's legal advice, not merely opinion.

In addition, if what you say is true, then the attorneys you've paid to issue you opinions on various issues don't grant you the unlimited license to take those same opinions and apply them to other cases of other individuals (who may not live in your state) because they won't stand behind them if someone else relies on them.

I'll make a deal with you: If you ask what jurisdiction the person resides in, and specifically address their issue in that jurisdiction with appropriate case law and statutory citations, IRAC your cases, then I'll discuss them with you in a manner you may perhaps find more meaningful.

And, btw Raymond. This is NOT, in any way, a copyright issue. It's a property issue. Got it !!!! Property law. Not copyright.
Okie dokie?

And yes I did say flowers and varietals are trademarked, copyrighted and patented. Check the patent, trademark and copyright office. You can start by searching intellectual property right holders like Burpee Seed Co., Asgrow Corp., Tanimura and Antle for produce, Orsetti Seed Co., American Takii Corporation, Sun Seed Corp., among others. Whatever chances you take are your own. I just don't like the fact that your good intentions may inadvertently lead innocent people here into very shallow water where they could run aground.

Finally, understand too Ray, I'm not disrespecting you professionally as a photographer. I think your photographic work, from what I've seen here, is fine. It's your legal opinions and manner of presentation I'm being critical of.

Peace.
Mark


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10/19/2006 8:11:03 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Hey Sharon, speaking of farm animals, is someone raising cattle around here? I detect bovenis excrementous. LOL !!!

Ok, what can and cannot be sold without paperwork? LOL !!! Law Review Articles, legal treatises by Constitutional scholars like Lawrence Tribe have been written on less. Ummmmmmmmmmm....no. I'm not going there.

Ray's answer to your question here Sharon is reasonable, concise, (reasonably articulate) and I dare say even accurate. Although remember, it doesn't apply to commercial situations. And it didn't even require any citations to authority. Cool.
M.


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10/19/2006 8:18:41 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  excuse me for a second sharon.here I am sitting on a fence and seeing both sides.neither answer is cut and dry and unless challenged is mute.rulings are made,maybe art,hell i'll plead insanity.i'm not sure if that is a positive thing since many here will witness that.kinda messes with credibility.both arguments are just,and I would avoid any sharp objects for a while folks,of course my ego has been on the shelf in my closet for years,i can't even remember which closet,might be the one that smells of i'm right.
nanette,it is only when you come across an owner who wants a piece of the pie after the fact,that means you took the photo and took the time to market it and made some money,that you will ever run into trouble.that is you make bukoo money off an image and they want a piece of it.rarely happens.
back to you sharon.


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10/19/2006 8:25:03 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
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  ROLF at bovenis excrementous, Mark! I've been accused more than once of being full of it myself ;)!

The thing that's really bothering me about all the legalities is it doesn't seem like you can take a photo of anything and safely sell it without a release and it blows my mind so many people in stock as well as microstock are doing just that. While I don't go to extremes taking precautions and getting property releases for everything I try to stick to subjects where it would be impossible for anyone to say, "Hey, that's my cow."


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10/19/2006 8:30:24 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  rofl?


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10/19/2006 8:36:53 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
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  Sam, it means "roll on floor laughing."


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10/19/2006 8:46:16 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  so why did you say rolf.and maybe,just maybe you would explain bovine excremeties?and don't give me that bs...


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10/19/2006 8:56:04 PM

 
dave    If you shoot anything from a public place you don't need permission to use it. That is only for people.


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10/23/2006 3:51:45 AM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  hey dave,
use it ok.
but yet make money off it?
rolling on lineoleum floor?


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10/23/2006 8:23:47 PM

 
Raymond H. Kemp
BetterPhoto Member Since: 4/2/2004
  Sure make money off of it, why not?


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10/23/2006 9:09:55 PM

 
Andrew  Livelsberger
BetterPhoto Member Since: 2/7/2005
  Getting legal advise from anyone over the internet is ludicrous. If you really want to know what you can and can't take pictures of and how you can use them afterwards, seek the advice of an attorney.


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10/31/2006 11:15:48 AM

 
Robert A. Farmer
BetterPhoto Member Since: 7/20/2007
  Nanette,

Did you come to a conclusion on how to proceed with obtaining a release?

Mark & Ray,

Thank you (months after the fact) for contributing quite in depth about Nanette's original post. I can see both of your view points; it is grounds to err on the side of caution and obtain a release before marketing any image.

I sincerely appreciate the different view points and the constructive exchange of opinions.

- Rob -


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1/23/2008 7:11:14 PM

 
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