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Photography Question 
Carole Loiselle
BetterPhoto Member Since: 3/23/2006
 

Permission to Shoot Private Home?


Recently, while on vacation, I took a shot of our new truck; however, in the background is a private home. Can I use this photo for anything other than personal use without permission of the homeowner?


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10/18/2006 3:52:22 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  First of all (and without seeing it), while it may be a great pic of your truck, its market value is likely diminished by the house in the background, assuming the house is recognizable. So the answer to your question is "No, you shouldn't use it without the homeowners permission".
In addition, to properly sell the photo, you need to get a release from the media/marketing rep at the truck manufacturer. Yes, even if it's your truck. There are two reasons for this:
First, selling photos of their vehicles isn't something contemplated by the average truck sales contract. and they could make a strong argument that you're being "unjustly enriched" by doing that. Second, the manufacturer has a proprietary ownership interest in determining how their image is presented to the public and used, whether for profit or not.
Now, chances are you'd get a release signed by the manufacturer before you get one from the homeowner, but in the case of the truck company, you're going to have to be fairly specific about the use of the photo and whether you intend to modify it at all. In fact, Carole, most corporations want to see an accurate representation of the finished work before they'll sign a release. This is the way it tends to be in the world of commercial photography.
Okie dokie?
Mark


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10/18/2006 9:40:15 AM

 
Carole Loiselle
BetterPhoto Member Since: 3/23/2006
  Okie dokie, Mark. Never thought of the truck company but this certainly makes sense. Thanks for the answer.

Carole


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10/19/2006 3:23:37 AM

 
Li Su   According to an article "Legal Rights of Photographers"(http://www.kantor.com/useful/Legal-Rights-of-Photographers.pdf), you don't need permission to shoot or publish your photo with a private house in the background as long as there is no reason for that house to expect privacy from the public street where you took the photo. I'm not sure about the truck itself though. The previous comment may be right.

Belows are quoted from the article:

"Except in special circumstances (e.g., certain government facilities), there are no laws prohibiting the taking of
photographs on public or private property. If you can be there, you can take pictures there: streets, malls,
parking lots, office buildings. You do not need permission to do so, even on private property."

"The logic is simple: If you can see it, you can photograph it. If it requires extraordinary means to see (e.g., using a
telephoto lens, or trespassing on property not open to the public such as a private office), then you may not be
able to photograph it legally."

"Subject to specific limits, photographers can publish any photos they take, provided those photos do not
violate the privacy of the subject. This includes photos taken while trespassing or otherwise being someplace they
shouldn’t be. Taking photos and publishing photos are two separate issues."


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10/24/2006 8:31:14 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  What you mentioned is true in terms of privacy issues. But the law of releases covers more than that. It evolves from property law and one of the inherrent rights gives landowners the right to allow or refuse to profit from their land by having images of it used for someone elses gain.

So, while it's ok to photograph a private home in "plain view" how you use the photographs and what permission is required, is an entirely different, as in completely separate issue. For example, if you photograph a private residence in Pebble Beach, CA and in a completely recognizable form it ends up on the cover of House Beautiful magazine, my opinion is that you owe the owners some compensation and without a release they'd be entitled to come after you for it.

In addition, privacy laws are creatures of both state and federal law. Property laws, including how an owner may choose or not choose to use his/her property, is more a state law issue, so I think if you read the disclaimers on Kanter's book or web site, I think he recommends that you check with an attorney in your jurisdiction specializing in such matters because, simply stated, the case law vs. statutory law may vary from one state to another. The prudent approach is get a release.

Meanwhile, that last statement Li noted is correct but combines two schools of legal thought and two fundamentally different legal principles: The correct statement is "Taking photos and publishing photos are two different issues." That's my point. You may be able to take it, but you might not be able to publish it without a release. As for the first part of what Li said, "photographers can publish any photos they take...(etc)" is overly broad and could likely to lead an unwitting to some legal problems at some point. I think that's really wishful thinking on Li's part and tends to support a predrawn conclusion which is sort of backing into a problem to find the answer you want not necessarily the correct one.

My advice is get a release. And...take it light. ;>)
Mark


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10/24/2006 9:05:07 AM

 
Li Su   Thanks Mark for the detail. Better be safe than sorry.


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10/24/2006 9:12:53 AM

 
Carole Loiselle
BetterPhoto Member Since: 3/23/2006
  Thanks to the two of you. Appreciate your taking the time to help out.


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10/25/2006 3:15:05 AM

 
Daniel O   Here's a thought: If the house is not integral to the photo, why not blur it so it's less recognizable? Easy to do in Photoshop or Elements, or probably any software using layers. That will bring out the truck visually, also. Then get a release for the truck only.


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10/25/2006 9:39:28 AM

 
Raymond H. Kemp
BetterPhoto Member Since: 4/2/2004
  I have several questions to Mark concerning his opinion as to the necessity for obtaining a release if a building or house is in the image. I would like some clarification concerning a couple of points that Mark has made.

You have mentioned “property law” as a basis for obtaining a release for a building or home, etc. Since you have cited California as your example and you live in California, could you provide us with an example or better yet the specific California property law that supports your opinion? I have researched this subject until I’m blue in the face and I cannot find anything yet (still looking) that is tied to property law concerning the publication of a photograph of a building that is in public view. Everything I’ve found so far is tied to privacy law more specifically “right of publicity” which as you know can include property of the individual that is claiming right of publicity.

Second question. Your example of the use of the photograph of a house in Pebble Beach, CA on the cover of “House Beautiful” in your opinion would require a release. Since “House Beautiful” is a magazine with a clear intent to “inform or educate” and as long as the photo’s use was editorial, this would seem to fall under 1st Amendment protection wouldn’t you agree? Therefore no release is required. There are a gob of court cases I’ve found that would seem to support this. Take Joe Namath vs. Sports Illustrated (Namath v. Sports Illustrated, 371 N.Y.S.2d 10 1975) for example, the courts ruled that no release was necessary since the release of the Joe’s photo on the cover of SI was editorial. He also lost a similar case in San Jose, California when a newspaper published posters of the famous quarterback.

Don’t get me wrong -- I respect your opinions. You have a very conservative approach about obtaining releases even in cases where one may not be needed. Clearly to reduce the potential for suit is to obtain a release but in some cases may be impractical. I just find it very impractical and in most cases not legally necessary (depending on the use) to get a release from every building owner of an image I take on the street of buildings in public view. I’ll call to question the New York City images on your gallery. Did you get a release from all of the building owners of the buildings that are clearly identifiable?

Thanks for taking the time for these questions.

Ray


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10/25/2006 8:03:14 PM

 
Carole Loiselle
BetterPhoto Member Since: 3/23/2006
  Thanks Dan and Ray. I like the house in the picture and wouldn't want to change it. We were in Niagara on the Lake, on the shore line, when it was taken, a very public place with many visitors year round. And we paid good money!! for that new truck, lol, and would think that I should have some rights. Actually I wanted to send the picture to the company where the truck was made.

Appreciate your help.

Carole


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10/26/2006 6:06:48 AM

 
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