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Category: New Questions

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Photography Question 
Stephanie M. Stevens

member since: 4/20/2005
 

Releases for Flowers?


If I took a picture of someone's flowers that was very close-up and you can't see anything else in the frame, and they really could be anyone's flowers, would I still need a property release to sell that image?

5/20/2006 12:59:32 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Technically and legally, yes. But not from the "someone" who grew the flower, rather from the company that produced the commercial seed it grew from. Why? Because flower varieties, like vegetables, are produced from specialized seed that are both genetically and agriculturally patented, and their particularized names are copyrighted by the seed company, the commercial grower, the seed coating company or all three. The patents and copyrights are "ownership interests" in their trade and protected under federal law. International varieties are registered as well here, and likewise protected.
How do I know this bit of rather esoteric trivia? Primarily because I shoot a lot of work for commercial vegetable growers like Tanimura and Antle, Fresh Express, Dole, and a lot of seed companies and coaters like Upjohn, Asgrow, and others, including flower seed producers and growers in Central California.
So, while a flower may be just like any other flower, unless you happen to be the Little Prince in St. Exupreux's book, a seed sales rep. can look at a whole greenhouse of plants, spot their firm's varieties and name them with nary a second glance. It's actually quite impressive. Lettuce has facial features as do flowers. A good seeds person can tell you when a plant has been cross-bred with another to produce another variety and which type of seeds produced it. So can a plant geneticist familiar with a particular species.
But, assuming the "someone" tossed out the envelope the seed came in, or the grower's name is no longer available, you could probably raise that argument in defense and as long as you don't show the flower in a derrogatory manner, like any other commercial product, your secret is safe with at least us. ;>)

Flower Photography Tip
BTW, as an aside to your question, which is a good one, I think, you might like to know that L the best way to photograph flowers, in any setting, is to rig a light tent above them to diffuse the light. Take an incident reading using a light meter and bracket by 1/3 of an f-stop to one full stop either direction. That in turn will help you capture all the neat detail without blowing out the highlights. You'll probably like the results in the 1/3 or 1/2 f-stop underexposed. Just thought I'd mention it.
Take it light.
Mark

5/20/2006 2:20:38 PM

 
Stephanie M. Stevens

member since: 4/20/2005
  Wow. I can't even begin to think how I would go about getting releases like that. Thanks for all the info though.

5/20/2006 2:45:27 PM

 
Bob Cammarata
BetterPhoto Member
cammphoto.com

member since: 7/17/2003
  Releases for flowers!

(...where will it end!)
I always thought that anything incapable of dialing an attorney was OK to shoot.

5/20/2006 4:18:55 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Yes indeedy Bob, the hits just keep on comin'!!! LOL !!!
M.
Sorry to be the bearer of bad news :<(

5/21/2006 10:08:23 AM

 
Edward SICILIANO
BetterPhoto Member

member since: 11/19/2005
  Are you saying: I buy a package of Panzy seeds, spend the next 4 - 5 months growing them in my basement, under lights, at my expense, plant them out in the garden, isolate a few gems to photgraph, then I can't sell the note cards I created. I bought the seeds, etc. there is no notice on the package or in the catalog I originally saw them. Doen't sound right to me.

5/23/2006 3:49:57 PM

 
Christopher A. Vedros
BetterPhoto Member

member since: 3/14/2005
  I'm just going to keep my blinders on and pretend I never learned this little tidbit of info.

Completely unrelated sidenote: Has anyone seen the nice collection of flower images that I have for sale as prints or notecards on my website? ;-)

Chris Vedros
www.cavphotos.com

5/23/2006 5:53:42 PM

 
Kelly C. Kane

member since: 4/26/2006
  That's like buying a puppy and having to get permission from the owners of the mother and father dogs in order to sell photos. I bought the puppy. I am the owner. I can take photos of it.

5/23/2006 6:30:09 PM

 
anonymous 
BetterPhoto Member

member since: 2/7/2005
  Oh God.... are all serious. I can't believe this question was even asked!!!

5/23/2006 6:39:56 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Why do you guys think pharmaceutical and bio tech companies are patenting stem cells for cloning purposes? It's all intellectual property, just like a specific variety of flower or vegetable seed.

If you're somehow profiting from photographing the end-usage result of product you purchase, like plants from a pack of seed, then yes, of course you can sell the note cards without a release. You can be sued for any number of violations of intellectual property laws in the U.S. if you don't have the manufactuers permission, but yes, you can certainly go right ahead and sell the cards. By all means :>).

The catalog producer probably has a clause in their contract to buy seed that they can use any likeness or photographic representation of the producers product for marketing purposes. That's pretty standard stuff.

Yes Kelly, it's your puppy, and that gives you an ownership interest in the dog and its offspring if any. As for seed, you don't have an ownership interest in the patent or copyrighted material that produced the original seed. Like your puppy example, you only possess an ownership interest in the product you grow, not in the parents of the dog. BTW, there are some dog owners who DO protect their dog's variety through registration, trademark and even copyright protection of names, titles, etc. ain't got right protection.

And I guess in Natalie's view, there are dumb questions but they don't deserve an answer. Now, I know Natalie would NEVER ask a dumb question. Nuh uh. Never. Not at all. Right??? seewhatimean?

Take it light kids.
Mark

5/24/2006 11:31:41 AM

 
Jerry Frazier

member since: 6/6/2005
  That's why I photograph people. It's much more clear cut.

So, what if you photograph a wild flower???

I wonder if the Nation Geographic photographers know about this.

Does this apply to animals? Like, my dog?

And, Mark, while I trust you are correct, I have every intention of completely ignoring this law. But, it is interesting to know. And, my quesitons about wild flowers and animals is sincere.

5/24/2006 12:43:00 PM

 
Ariel Lepor
BetterPhoto Member

member since: 9/8/2005
  THIS IS INSANE!!! So you own a dog and the owner of a father and mother dog and PATENT the specific type of offspring, and SUDDENLY you could get sued for selling photos of your dog! It's like patenting "Joe is a good boy." I came up with that sentence, and I can patent it, and I CAN SUE YOU FOR USING IT IN YOUR OWN BOOK, EVEN IF YOU NEVER SAW ME WRITE IT!!! INSANE!!!! People shouldn't be able to patent things like that. I'm sure you are correct, Mark, but I don't plan on going out of my way if I photograph a flower. How would the guy who first came up with that flower know I didn't get permission, anyway?

And nice photos, Chris!

5/24/2006 5:16:07 PM

 
Ariel Lepor
BetterPhoto Member

member since: 9/8/2005
  And Joe, who's to say that a cross-bred seed didn't blow into a forest? If you photograph a flower, you have to contact everyone in the world and make sure they didn't come up with that specific flower...;-) Yeah, right!

5/24/2006 5:19:07 PM

 
Margarita S. Farrow

member since: 5/27/2006
  Ok if I have to get a release from the maker of the seeds for the flowers, then does that mean I have to get a release from GOD to sell a photo of a bird, tree, grass, etc.

5/27/2006 10:50:04 AM

 
Ariel Lepor
BetterPhoto Member

member since: 9/8/2005
  Thank God He doesn't sue for selling photos!

5/27/2006 10:23:44 PM

 
kerby lee pfrangle
BetterPhoto Member
Contact kerby
kerby's Gallery
pfrangle.com

member since: 4/19/2005
  If I have to get a photo release for a daisy I quit. LOL...Kerby

5/28/2006 9:28:56 AM

 
Bob Cammarata
BetterPhoto Member
cammphoto.com

member since: 7/17/2003
  I'm also glad that God hasn't jumped upon the legal bandwagon when we photograph His creations.
(Of course, we all have the right to counter-sue for the damage we incurred during last year's hurricane season.)

The problem all photographers...(and all who are trying to survive in today's world) have, is that those who haven't the talent or the ambition to succeed are seeking advice and council from those who are in the business of making money off the talent and ambition of others.

...Now, I think I will get off my soap box and go out and shoot some flowers.
(...Anyone want to join me?)

5/28/2006 10:01:18 AM

 
kerby lee pfrangle
BetterPhoto Member
Contact kerby
kerby's Gallery
pfrangle.com

member since: 4/19/2005
  Hi Bob,

I am still looking for that perfect daisy.

Kerby

5/28/2006 10:14:43 AM

 
Ariel Lepor
BetterPhoto Member

member since: 9/8/2005
  I've got no problem with joining you, Bob and Kerby....;- )

Hey, I've got a legal question for you, Mark. Can I sell photos of my budgies? After all, those sub-breeds (different colors, etc.) were "man made"! Maybe I need to spend a few months doing research and work before I can sell a photo....
;- )

5/28/2006 5:44:21 PM

 
Don Williams
BetterPhoto Member

member since: 7/6/2004
  My turn to add to the pile! My thought is... If I invest the time, money, research to create something, I want to be recognized as the owner of what I created. If I spent years perfecting a type of rose I want that protected as "mine." And I want to have a say in the use of it. It is not "just a flower" anymore it is culmination of my efforts just like all our efforts to create a beautiful photo should be protected. Afterall, I can't take a picture of anyone else's photos, call it my own and dismiss complaints by saying, "well, they didn't put much work in to it," or "It's a picture of something that God made." Anyway, that's my 2 cents on the matter.

6/2/2006 5:35:37 PM

 
Rob Zuidema
BetterPhoto Member

member since: 3/19/2005
  So...now I'm wondering...if I want to take a photo of my house to post on a website or put it in a book, do I have to get a signed release from the architect who designed it, or maybe the contractor who built it?

It seems to me that any copyright would prohibit me from making the same thing and calling it mine. Taking a photo of it is not the same as copying it.

In any other thread about copyright and releases that I have read here at BP, it has always been mentioned that property releases need to be obtained from property owners, not designers or manufacturers.

Maybe I am missing something here, but why is a flower different in this respect?

6/2/2006 8:28:46 PM

 
Melanie Murray
BetterPhoto Member

member since: 10/3/2005
  You know I never really came into the discussion area but I must say that I absolutly love it.
Mark, thank you for sharing all that info. I knew that with one of our dog's I have to have permission due to a breeder's note but flowers I had never thought of. It's so easy to forget the little things some times.
Chris, you absolutely crack me up.
:)

6/2/2006 9:15:03 PM

 
Justin G.
BetterPhoto Member

member since: 7/13/2004
  Shoot if you want to keep traveling down this road, somebody paved all the cement you see around so you can't ever take ANY pictures of cement. There was an architect for everything that is built so can't take pictures of that. And if it wasn't something built then somebody owns anythign and everything you see in this nation. Whether it be private, local, state, or federal, someone owns every possible thing you see. So either put down your camera, get a release from the Capitol building for the shots in Yellowstone (somebody owns it right?), or quit worrying so much and just keep shooting. A flower? Come on. There can't be any possible way somebody can prove beyond any reasonable doubt that the macro flower shot you took, was physically theirs. If it's a person, or something blatantly obvious, then yeah common sense would tell you hey maybe I need a release. But if I take a pic of some blades of grass, can anybody possible prove beyond a reasonable doubt that it was from their yard? No possible way.

6/2/2006 10:20:42 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Okie dokie. Most of the additional questions here turn on either proprietary ownership interests in the originating property like the flower seed, the genetic make-up of a plant or budgie, or the original design of a home.

Regarding architectual design: If you own the house, you own the right to use the design for any lawful purposes. The architect transfers that right to you on payment of their fee. BUT if you wanted to copy the design and make more houses from it, if the architect copyrighted their work, no, you can't do that. The same analogy applies to the birds, and the seed.

You can transfer usage rights to anything either by express agreement or by implication. And then, there's the issue of whether something is the subject matter of a usage agreement or simply incidental to it...like Justin's cement.

BUT...I can tell ya Justin, that a floral breeder from Asgrow Corp. (A division of Upjohn Pharmaceuticals) can tell you whether his variety was cross bred with a plant from say American Takii Corp. to make a third variety by looking at and measuring the features of the third plant. And as far as proving it (by 51 % of the evidence referred to as a preponderance, not a reasonable doubt or the 98% standard you mentioned) this is what juries and judges are for I guess. And yes, common sense plays a part in this as it does in other things in every day life.

Byron btw, has the right concept and motivation I think. Ownership rights arise from, among other things, developing and protecting a product.

Thanks Melanie. Glad you're enjoying this little academic exercise. ;>)
Mark

6/3/2006 10:04:55 AM

 
Ariel Lepor
BetterPhoto Member

member since: 9/8/2005
  But you're not making any money off the person who designed the flower! If not that, a similar flower! It's mere coincidence that this flower was "manufactured". Right?

6/3/2006 9:37:54 PM

 
Ron 

member since: 7/9/2006
  Sorry, but I don't believe it.

11/14/2006 8:11:39 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  LOL, Ron. Ask me if I care what you believe.

11/14/2006 8:18:34 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  OK, I'll save you some time.
The answer is "No, I don't care what you believe." Honest. Not a bit. Not even a teensy teeny tiny little bit. ;>0)
Take it light.
Mark

11/14/2006 8:20:38 PM

 
Ariel Lepor
BetterPhoto Member

member since: 9/8/2005
  Some people might believe it and not care, others just won't believe it, and there could be a few who believe it and care. I'm not sure whether to believe it or not, but I don't care. Mark, I know your just offering the legal facts, but if you actually heard of a case where person A sued person B who sold unauthorized photographs of a flower person A designed, I'd be very interested. But it would be like the case of the guy who broke into a house when the family was on vacation, and the guy accidentally got stuck in the garage and had to eat dog food until the family came back, and then he sued. And won. lol

11/15/2006 4:32:13 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Actually Ariel, in a word, no. Probably for a lot of reasons, but first, it doesn't mean that there hasn't been such a case and I just haven't heard of it which is a strong possibility. As you noted, of course the law can be an ass sometimes. They tell you that in law school. And sure there have been some really stupid decisions, which is one reason why there are apellate courts. :>)

Oh the guy stuck in the garage, it's probably a false imprisonment case and violation of a health and safety code or building code statute (no means of egress). Probably didn't win big. BUT what I would have recommended is that the homeowners counter sue HIM to recover the price of the dog food plus their labor in having to go restock their supply, court costs too. :>0) LOL !!!
Later kiddo.
Mark

11/16/2006 10:30:45 AM

 
Ariel Lepor
BetterPhoto Member

member since: 9/8/2005
  LOL, that'd be good.

11/16/2006 10:39:47 AM

 
Sharon  Day
BetterPhoto Member
Contact Sharon
Sharon 's Gallery

member since: 6/27/2004
  Ok, I'm one of the ones that find this sort of thing extremely interesting, and I care to a certain extent but that doesn't stop me from taking photos of most flowers. With that said, the local gardens I visit has an iris garden in the spring. They have on display many beautiful and unusual varieties of irises. While taking photos of these irises last spring I overhead a guy telling some people that he had been growing irises for many years and a lot of the irises on display were varieties he had developed. So with that in mind I decided to ask him for a release next year when I photograph them.

11/16/2006 12:18:46 PM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  That's what I'd do Sharon. But then...what do I know except at times I guess, I'm an unbelievable kinda guy. LOL !!!
M.

11/16/2006 6:24:46 PM

 
Scott McCord

member since: 10/16/2005
  I swear, Mark. You simply amaze me with your encycopedic knowledge of this industry.
You seem to be able to provide an answer to the most obscure question that would leave 99% of us scratching our heads.

How on earth do you keep track of all this stuff?

11/17/2006 11:28:08 AM

 
Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Clean living, Scott. [Ok, that's a lie]. BUT... I stayed in a Holiday Inn Express last year. ;>))
Mark
===============================
My concept of "roughing it" is staying at a Hyatt Regency that doesn't have 24 hour room service.

11/17/2006 12:07:47 PM

 
Carolyn  M. Fletcher
BetterPhoto Member
Contact Carolyn
Carolyn 's Gallery
PickYourShots.com

member since: 10/6/2001
  This has got to be the funniest thread I've come across. Let them sue me, but I don't think I'll be getting model releases for flowers anytime soon.

11/18/2006 8:59:27 AM

 
Nacoma D. Hayden
BetterPhoto Member

member since: 12/27/2004
  I cannot believe that I'm responding to this, but this is insane. How about we just stop shooting flowers all together. Lets have a global photographers boycott. Do away with photo releases. Who needs em anyway. To get the right to capture an image is almost as stupid as eating more ice cream right after a brain freeze. Leave the legal stuff alone and lets keep to the art of our trade.

12/1/2006 10:28:44 AM

 
Shawn M. Marymee
BetterPhoto Member

member since: 10/23/2006
  Mark,
Are you saying that every photo here of flowers that the person who took the photo did develop (the flower)could be sued??? So none of the photo's of domestic flowers can be sold for fear of a law suit???
Do I understand that right???

Thanks

12/4/2006 10:14:34 PM

 
Debbie E. Payne
BetterPhoto Member
Contact Debbie
Debbie's Gallery

member since: 3/21/2006
  I find this all highly entertaining and although I probably won't ever get a release for a flower, I can understand that at some point in time, some unlucky photographer will be sued for doing so.
By the way, I have a couple of grown children that would probably sue me if I ever dared to enter any photo of them in a contest. Go figure....

12/6/2006 12:29:56 PM

 

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