 - Carolyn J. Coleman  Contact Carolyn J. Coleman Carolyn J. Coleman's Gallery |
Local Church Bureaucracy I took a silhouette shot of a church steeple with the jet trails meeting at the cross on the steeple. A few weeks ago, I took a generic property release by the church to have them sign a property release. This release passed through the pastor's hands, to the church administrator, then to the lawyer. Today, I was told their lawyer said they shouldn't sign the release because it was too vague. It seems the word “irrevocable” worried them. (This is a property release that I have found on the Internet, in books, etc.). I was told that if they do sign it, they would first have to take the release before the whole church to get their approval. My questions are the following: what do I do next? I have already sold one print to individual. Can I continue to sell prints to individuals without a release? I have decided to enter this print into some contests & if I have to have a release, I will be specific for that contest & go back to the church. (Seems like a lot of trouble) I know I probably can't send this photo to stock photo without a release. This photo can be viewed at http://www.betterphoto.com/gallery/dynoGallDetail.php?photoID=2158576&catID=&style=&rowNumber=8&memberID=138467 Thanks to anyone that can give me some advise. Carolyn
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Raymond H. Kemp |
To save myself a lot of time posting this response, check out Dan Heller’s site: http://www.danheller.com/model-release.html#8.2 You will find that you really didn’t need a release assuming the photograph will be used for artistic, editorial or private purposes. The fact you sold the photograph to someone would be considered a form of art since commercial use only applies to the use for advertising, endorsements, etc. (tons of court cases on file supporting this). Also check out Andrew Kantor’s Legal Rights of Photographers: http://www.kantor.com/useful/Legal-Rights-of-Photographers.pdf
Good luck! Ray
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Mark Feldstein |
You're setting yourself up for a pretty precarious situation Carolyn, particularly if you follow Ray's advice, who btw, is not an attorney. You've already been told by an attorney (for the Church) that they don't want you selling the image because your release is too vague. That's their choice and obviously their position. If you want to argue with them, you may likely find yourself in court as the defendant in a lawsuit. This is why we have releases, to give people in charge of the subject property a choice on how the images will be used at one point or another. The best thing you can do to force the issue and obtain their permission, is to get a lawyer who works for you to contact their attorney and negotiate a release. If you offer this image as stock, chances are you'll be representing that it's properly released when you submit it for their consideration so you can't lawfully do that. If you submit it to a contest where you may be awarded something of value, that's commercial use. Editorial usage, depending on HOW it's used, with what description, etc., AND the publication, may require a release. New York Times Magazine, for example, requires a release for about 99.9 per cent of the images they publish. There are lots of reasons for their adherence to those rules. Also, remember that property laws, privacy laws and attending release laws may vary considerably from one state to another. They are NOT issues of copyright and federal laws, including fundamental rights to privacy, may not apply or there may be an overriding state statute.
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Mike Rubin |
If it is a silhoutte, that would mean the steeple is not identifiable as belonging to a particular church. I think this means you can use it since no church could say it is theirs. Mark seems to be our resident expert about copyright law, How about it Mark, does this make sense?
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Samuel Smith |
here's my thinking carolyn. a sillhouette of a church steeple is not recognizable,and I doubt the church had it copyrighted.taken on public property it is yours to do as you wish less commercialism.even then I could probably take a photo of a local steeple,sillhouette,and email it to you for your defense to complicate the matters for the prosecution. several if you need.comepletely legal for the defense to show that it is or isn't recognizable. but you did complicate matters by saying it was their steeple.maybe a small donation per sale would alleviate the churches interest. a release by you is a release.you took the photo.you give yourself the release and by right it is your photo. it seems to me that unless someone else has a similar photo you wouldn't be infringing on anothers right. please let us know the rest of the story,sam
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- Carolyn J. Coleman Contact Carolyn J. Coleman Carolyn J. Coleman's Gallery |
Thank you for your responses. Ray, I have looked at the sites you have mentioned, but need another day to look thru them. Mark, I have found it some what difficult to found difficult to find copyright laws just for "ARKANSAS". I had wondered about the response that Mike made concerning the sillhouete, not identifying the Church. It does not identify the building. I was also wondering about the architectural design & getting a release from the architects? Because of Mark's comments, at this time I decided to pull the photo from any contest. The statement that was made to me several times was that several of their members had taken pictures of the steeple & their concern would be if my photo effected their use. I simply told them that this was for my protection. I am wondering if I use the photo to display at a fair, art show, etc, would I also need their release?
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Mark Feldstein |
Greetins Carolyn: It's not a copyright issue. You own the copyright unless you agree to sell it to someone or some entity. This is an issue involving property law and the owner's interest in controlling the use of the image of their property. That would be covered under Arkansas state law. And, btw, if the image is not recognizable specific to any particular church, then it IS fair game for you to use. But your problem now may be that since so many people there have seen it, including their lawyer, that if it turns up, they may recognize it, note that it's theirs without a release and make an issue of that. You did the right thing in asking for the release. The lawyer is being a (shall we say) butt head for disagreeing with the liberal language of the release you presented to him. If you pushed it a bit further, say to the board of directors at the church, you might get the release you're looking for, just modify it a bit to be more specific in its purpose, use of the photo, etc. Another part of this equation is that you're apparently getting a lot of different input from church members etc., that may not have a clue about what they're talking about. Ask a lawyer there who specializes in intellectual property. That's to really be on the safe side and go with what they tell you. Should probably cost less than $100 bucks, if anything to buy a half hour of their time. If you do, lemme know what they say please. Afterall, there may be a difference between the way courts in California see the issue as opposed to ones in Arkansas. Take it light.
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John P. Sandstedt |
If we were in court, we'd all remember the axiom - "If you don't know the answer to the question you ask a witness, don't ask it!" Hence, giving the church officials a blank [and "vague"]release seems a corollary - If the subject of the photo in question is a church steeple, in silhouette showing jet trials, why would a release be needed in the first place? If the photo includes a sign, in front of the church bearing its name, maybe. Regardless, do N.G. photographers really get releases from the owners of all the objects in the magazine?? People, yes - but, buildings, statues, plants, waterways, railroad tracks??? It's a puzzlement!
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Samuel Smith |
no,carolyn said church members had their own photos and were worried of their own prosecution. I hate to say it but you seem to be proliferating a captilism scare tactic.that I hold the rights and you don't have enough money to be right. I fully enjoy a discussion of a view of right,aside a discussion of law.a view I see as a right not a view of legislation. I may be wrong,but I won't be quiet,sam
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anonymous A. |
Having seen your photo, Carolyn, I have to say that it looks like a hubdred other steeples and is unlikely to be readily recognised...and just changing the tine of the glass panels to (say) blue would probably solkve the problem....if there is one! As others have pointed out, this is a property rather than copyright issue. The American Society of Media Photographers (http://www.asmp.org/commerce/legal.php)FAQ page offers the following... "Q: How do I know when I need a property release? I think you have made you life harder by asking for a release in this case, and your (unecessary) politeness may bind you tighter than any legal obligation: first, because your request for a release suggests that YOU believe one is necessary (this could be important in the case of litigation); secondly because good manners dictates that, having offered the right to say "no", I think you are morally obliged to respect that right.
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Raymond H. Kemp |
The property laws that are being discussed are tied to what is known as “right of publicity” which falls into the area of Appropriation of the four common law privacy torts. Whereby if property (car, cat, horse, building, etc.) can be closely identified with the owner’s likeness and there is clearly an economic loss (to the owner) as a result of the owner’s likeness, then a potential “right of publicity” issue exists. In other words to use property that is closely tied to the owner would be the same as using the owners actual image, since the property in question is clearly something that belongs to Joe Blow famous actor. Here’s an example that I used in another similar thread: I own a custom truck parts company and I put a bunch of my customized parts on my truck to shoot for an ad. I then take my truck to Beverly Hills and park it in front of Ozzy Osbourne’s house. I shoot the picture and run it in magazines all over the US. I get sued from Ozzy for violation of his right of publicity. But why? Ozzy’s not in the picture! No but his house is and a lot of people know that house from his MTV show. It could be said that Ozzy is endorsing my truck parts since the house is closely tied to his own likeness and therefore he received an economic loss from using his house. Now unless it is without a doubt that the steeple is a clear likeness to Jessie Jackson, Al Sharpton, Tammy Faye or who ever, in my opinion there is no concern here. Federal copyright law allows for architectural copyright protection of buildings except in the use of photography whereby the building can be clearly seen from a public area such as a street or park. I bring this up because so many people are under the misconception that you cannot photograph buildings due to copyright. Some States have copyright laws but most mirror the Federal Copyright laws and the ones that we found that have copyright laws only pertain to piracy. Let’s look at Carolyn’s photo another way. Pull that shot back say several hundred yards or so. Now we can see a skyline of buildings with that church steeple sticking out with all the other buildings in the shot. Now are you going to tell me that all of those buildings will need a release?? How many photos of the New York skyline have you seen especially since 911? No freaking way is there a release!! And yes Mark Feldstein is correct… I am not an attorney and have I ever claimed to be one. Not sure why he wants to bring that out here. Mark and I have done battle on this topic before and I suspect we will continue to do so. But that doesn’t mean I can’t do my own research on this subject and I’ve done a ton and with good reason. My photography reaches much deeper into privacy concerns than building and church steeple images. I have hired and retained attorneys just for those matters and they have assisted me with my research which I share here. David brought out an excellent point that is also covered in Dan Heller’s article. Carolyn would have been better off not trying for the release since it is pretty clear one was not needed but now has opened an issue with the church. In my opinion I’d just say to the church, “Hey guys sorry, I don’t need a release.”
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- Carolyn J. Coleman Contact Carolyn J. Coleman Carolyn J. Coleman's Gallery |
Thank you for your good responses, advice & references to articles (which were very good). In hindsight, the steeple is unidentifiable. I have shown it to several members of that church & none of them could identify which church owned the steeple. However, I have taken the first step, maybe in innorance, of doing what I thought was right in getting a release. It was apparent that the church had never been faced with this sort of thing. (But the lawyer should have known better) My intent was to sell this photo to other churches for bullentins, post cards, etc, possibably Christian magazines, CD's, who knows, maybe a book cover & maybe for stock, as well as to individuals. I agree with David about putting myself into a "moral obligation" since I've given them the right to say "no". I will honor their request at this time. In the mean time, Mark, I am in the process of contacting a lawyer & have them represent me in requesting a release. I don't know that any stock agency would be interested in this photo or anyone else, but this has become a most valuable lesson for me. Thanks to everyone for your advice. I will keep you posted as I proceed with a lawyer. Carolyn
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Raymond H. Kemp |
As Mark said, hire an attorney that specializes or has a background with intellectual property. There are a lot of attorneys who say a lot and know nothing!
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Sharon Day |
You could always get another shot of a steeple in silhouette. One you won't need a release for. Get a shot of airplane trails and combine them in PS. No need for the hassle of trying to get a release and you'd have your generic photo of a church steeple. BTW, that one looks like one of hundreds to me too.
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- Carolyn J. Coleman Contact Carolyn J. Coleman Carolyn J. Coleman's Gallery |
Sharon, the suggestion sounds good to me at this point. I thought of adding the flag to the background:-) My thought is to keep it simple, but seems I've put myself in an unnecessary place & am trying to dig out of it...I really doubt that anyone from the church would ever say anything to me about it, but I have opened a can of worms! Ray, thanks for your referrence to Dan Heller. Finally got to read his article & found it to be helpful. Agreed this may be like hundreds of others...but who knows...
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Jesse C. Plummer |
Carolyn, in the Royalty Free sites, there are tons of steeples. Get one of them and load it in PS and make it a sillouhette and then add the trails. This way no one is offended. The church has a right to not have the image sold for profit. The ironic thing is, the lawyer for the church must not be very keen on copyright as, unless done by the artist themself, all copyrights on all works of art, print or otherwise, are irrevocable. You own the copyright with or without the signature. The fact is, you could use the image. It's just not worth all the hassle. They have the right to not have it identifiable to them. They don't want it showing up on a porn site or something promoting "naughty nuns" or whatever. It is a legit concern as there are some wierd people in our world.
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
"My intent was to sell this photo to other churches for bullentins, post cards, etc, possibably Christian magazines, CD's, who knows, maybe a book cover & maybe for stock, as well as to individuals." Those uses don't fit what you originally said. Stock companies do need releases. And just because an image is royalty free doesn't mean you can buy one from a stock agency, change it and resubmit it to another stock agency as your own.
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