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Equipment & Techniques => Pro Business Discussion => Topic started by: Colorado David on August 13, 2015, 04:46:59 pm

Title: Property Release Question
Post by: Colorado David on August 13, 2015, 04:46:59 pm
A friend and colleague of mine has an issue regarding the use of images.  He's been photographing dogs at a dog training facility for a few years.  He is friends with the owners of the facility and has a good working relationship with them.  After photographing dogs there for several years, he's sold a fair number of images to calendar companies and for editorial use. He has never gotten a property release from any of the dog owners/breeders, however he was told by the owner of the stock agency that represents his work, that a property release is not required for dogs.  Now, while negotiating for a photo shoot with one of the dog owners, the question of property release has come up.  The dog owners are asking why he can photograph their dogs and license the images without having a release from them.  My inclination is that you must have a release for property that is recognizable, but can't remember where I got that information. What is the general consensus about property releases under these circumstances?  Thank you.  Just as a matter of full discloser, the owner/breeder has used this photographer's images in advertising and website use without notification, license, or compensation in the past and my friend has just found out that one of his images is running in the current issue of a magazine in an advertisement for the breeder.  My friend had sent prints of some of his images to the training facility owners as a courtesy with his copyright imprint on the prints.  The recipient snapped a quick cell phone picture of one of the prints and texted it to the dog's owner/breeder.  That is how they got an image that didn't have a watermark or copyright imprint.  That part is all innocent enough, he just needs some definitive opinion on the need for a property release.  My friend is an excellent photographer and has earned all of his living from photography for all of his adult life, but it has all been editorial work, not commercial assignment photography.
Title: Re: Property Release Question
Post by: Some Guy on August 13, 2015, 05:40:08 pm
This?  http://asmp.org/tutorials/using-property-releases.html (http://asmp.org/tutorials/using-property-releases.html)

SG
Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 13, 2015, 09:00:36 pm
He should contact an attorney and get a definitive answer...

Hahahahahahhhahahahahaha!!! ;D ;D ;D

Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 13, 2015, 09:14:28 pm
The only "definitive" thing you are going to get from a lawyer is a... bill. Or a Supreme Court ruling. Anything else is "it depends." If a lawyer would be able to give you a "definitive" answer without going to court, facing the opposing lawyer and the judge, appellate process and, ultimately, Supreme Court, lawyers would cease to exist... you could just google the "definitive" answer.
Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 13, 2015, 09:51:44 pm
... my opinion that one should seek actual legal assistance...

Which I did not dispute. What I did dispute is that by doing so, one would get a "definitive" answer, rather than a general and hypothetical one.

In the OP case, it would depend on the definition of calendar use, i.e., is that a commercial use in the sense of the copyright law, or editorial one. It would be clearly commercial (advertising) if the calendar is, say Pirelli for dogs. It is most likely editorial if simply a collection of cute (or not) dogs. But to find out which is which "definitively," in that specific case, one would actually have to go through a court process to find out, not just ask a lawyer.
Title: Re: Property Release Question
Post by: D Fuller on August 13, 2015, 10:13:47 pm
So... this is a case where everybody involved has ignored the rights of the others. Your photographer friend owns the photographs, but without a release, he does not own the right to commercial exploitation of the dog's image. (In other words, he has no legal right to sell his photograph unless he crops the dog out if it.) The breeder has no right to use the photograph, but he controls the right to use his dog's likeness.

This sounds like a case that could go sideways really quickly, or ... since everybody would benefit from an amicable agreement, they could all sit down and agree to cooperate with each other. And then get a lawyer to draw up a rights agreement that allows the photographer to use the images of the dog in exchange for the breeder having the right to use the photograph of the dog.
Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 14, 2015, 12:35:32 am
... In other words, he has no legal right to sell his photograph unless he crops the dog out if it.) The breeder has no right to use the photograph, but he controls the right to use his dog's likeness....

As far as I know, none of that is correct (except that the breeder has no right to use the photograph). The photographer certainly has every right to sell his photographs of those dogs without a property release, except for advertising. He can sell them, for instance, for editorial use, sell them as fine-art prints in galleries or on his web site.
Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 14, 2015, 12:46:19 am
... one does not need to engage in litigation to find out what the law requires.

Of course, everyone can google and read what the law says. Indeed, you do not need litigation for that. By the same token, you do not need a lawyer to read the law either. If everything would be settled by the letter of the law, we wouldn't need the legal system, just police and perhaps a court clerk to type the verdict. The issue is not what the law says, but how to interpret it. Laws are not perfect, and not unambiguous. That is why we have lawyers on two sides, a judge and often jury to decide.

We do not run to a doctor every time we sneeze; we do not run to a lawyer every time we have a legal question either. We do it when things get serious.
Title: Re: Property Release Question
Post by: David Eichler on August 18, 2015, 02:48:11 pm
So... this is a case where everybody involved has ignored the rights of the others. Your photographer friend owns the photographs, but without a release, he does not own the right to commercial exploitation of the dog's image. (In other words, he has no legal right to sell his photograph unless he crops the dog out if it.) The breeder has no right to use the photograph, but he controls the right to use his dog's likeness.

This sounds like a case that could go sideways really quickly, or ... since everybody would benefit from an amicable agreement, they could all sit down and agree to cooperate with each other. And then get a lawyer to draw up a rights agreement that allows the photographer to use the images of the dog in exchange for the breeder having the right to use the photograph of the dog.

There is no specific law in the US that requires a property release and model releases only apply to people, not to animals, which are property. While it might nevertheless be prudent to obtain a property release in some cases, even if there is no specific requirement to do so, I do not believe that having a property release is a guarantee against a property owner trying to sue.

The ASMP info cited above is a good place to get an overview of the matter. The ASMP has its own legal counsel.

As for getting a lawyer to draw up a rights agreement, professional photographers draw up such agreements themselves, without recourse to a lawyer, all the time. I see no need for a lawyer for such a purpose if the terms are fairly straightforward, which is usually the case. When things start to get complex, by all means get a lawyer involved. Again, the ASMP has some excellent resources related to the licensing of images, as well as other matters related to the business of photography.

Typical license terms might look something like the following:

1. Photographer retains copyright to the images and reserves all rights

2. The period of use is 1 year

3. The territory of use is the United States

4. The medium of use is the Internet

5. The license to use the images will not be in effect until the invoice is paid in full

6. The license may not be transferred to any third parties without the written consent
of the photographer

7. The usage license is non-exclusive

The fee for the above license is $X,XXX

Title: Re: Property Release Question
Post by: Colorado David on August 18, 2015, 07:28:55 pm
Thanks for everyone's input.  The situation has been amicably resolved. I like to operate under the "abundance of caution umbrella" as much as possible.  I never seriously believed there was a need for a property release for a dog.  I also believe that whether or not you eventually end up sitting across the desk from your attorney, there is nothing wrong with doing your own research beforehand.  Thanks again.
Title: Re: Property Release Question
Post by: D Fuller on August 18, 2015, 11:43:55 pm
Thanks for everyone's input.  The situation has been amicably resolved. I like to operate under the "abundance of caution umbrella" as much as possible.  I never seriously believed there was a need for a property release for a dog.  I also believe that whether or not you eventually end up sitting across the desk from your attorney, there is nothing wrong with doing your own research beforehand.  Thanks again.

Very glad for that outcome.
Title: Re: Property Release Question
Post by: D Fuller on August 19, 2015, 12:20:08 am
There is no specific law in the US that requires a property release and model releases only apply to people, not to animals, which are property. While it might nevertheless be prudent to obtain a property release in some cases, even if there is no specific requirement to do so, I do not believe that having a property release is a guarantee against a property owner trying to sue.

The ASMP info cited above is a good place to get an overview of the matter. The ASMP has its own legal counsel.

As for getting a lawyer to draw up a rights agreement, professional photographers draw up such agreements themselves, without recourse to a lawyer, all the time. I see no need for a lawyer for such a purpose if the terms are fairly straightforward, which is usually the case. When things start to get complex, by all means get a lawyer involved. Again, the ASMP has some excellent resources related to the licensing of images, as well as other matters related to the business of photography.


We routinely get releases for everything we shoot that's going to have any commercial use at all. Our reasoning is that we don't want our clients ever to be exposed to any risk of being sued for unauthorized usage for anything we produce for them. Another part of our reasoning is that we are not lawyers, and we do not have the time to find out, for every location, pet, unique antique car, painting, tattoo art, or trained animal which ones are, strictly speaking, mentioned in some rights law. But we assume that people own the rights to the images of the things they own, and that we ought to ask their permission if we're going to make commercial use of them. If nothing else, it's just considerate. But I believe it goes a long way toward preventing the kind of misunderstandings that end in lawsuits. Maybe I'm kidding myself. But the ASMP seems to support that same line of thinking, so I'm in good company.

ASMP Article on Using Property Releases (https://asmp.org/tutorials/using-property-releases.html#.VdP9Pnh-dZs)

And yes, most of us (myself included) draw up all kinds of rights agreements ourselves... or at least we adapt something we've copied from the internet. :)

DAF
Title: Re: Property Release Question
Post by: MarkM on August 19, 2015, 02:26:41 am
Another part of our reasoning is that we are not lawyers, and we do not have the time to find out, for every location, pet, unique antique car, painting, tattoo art, or trained animal which ones are, strictly speaking, mentioned in some rights law. But we assume that people own the rights to the images of the things they own, and that we ought to ask their permission if we're going to make commercial use of them. If nothing else, it's just considerate. But I believe it goes a long way toward preventing the kind of misunderstandings that end in lawsuits. Maybe I'm kidding myself. But the ASMP seems to support that same line of thinking, so I'm in good company.

If you are trying to avoid risk at all costs, than the reasoning that a release can't hurt is convincing, at least in the short term. But the above statement is much different than this:

Your photographer friend owns the photographs, but without a release, he does not own the right to commercial exploitation of the dog's image. (In other words, he has no legal right to sell his photograph unless he crops the dog out if it.) The breeder has no right to use the photograph, but he controls the right to use his dog's likeness.

Here it sounds like you know something about the legal basis of releases as they apply to pets that the rest of us don't. It would be nice if you explained your risk-avoidance reasoning rather than simply stating this as a fact. Or, if you know this to be a fact, cite a case or statute to support it. Of course this will be difficult because there is no statute or case creating a right to a pet's likeness.

Communicating your intentions to a client in the name of politeness is different than asking them to sign a release. By asking them to sign a legal document, you perpetuate the idea that a release is required. By communicating that a release is required when it is not (and further commenting on forums like this that a release is needed) you erode the rights of all photographers. As photo attorney Carolyn Wright has repeatedly said (http://www.photoattorney.com/fear-of-lawsuits/) regarding property release in general:

"If the building’s owner signs the property release, then you have little concern that he will sue you for the use of the photo. But what if he refuses to sign? Then you will have to find another building to photograph and ask for permission again. What if he demands payment? You then must pay for something that you are entitled to for free. If the building owner signs the release, he will expect the next photographer to ask for a property release, too. If permission is not requested, will the owner sue the second photographer for doing something within his rights? Will all photographers then have to get permission or pay for something when it is not legally required?

What other photographers’ rights will erode from fear of exercising them? The first step towards protecting your rights is to know them. The second is to stand up for them."
Title: Re: Property Release Question
Post by: AlterEgo on August 19, 2015, 02:41:23 am
As far as I know, none of that is correct (except that the breeder has no right to use the photograph). The photographer certainly has every right to sell his photographs of those dogs without a property release, except for advertising. He can sell them, for instance, for editorial use, sell them as fine-art prints in galleries or on his web site.
I have a question... I breed a dog, groom it, etc... this is my "art" - you photograph my art and sell it (w/o whatever property release)... can I "photograph" your photograh and sell it too ?
Title: Re: Property Release Question
Post by: MarkM on August 19, 2015, 03:22:02 am
I have a question... I breed a dog, groom it, etc... this is my "art" - you photograph my art and sell it (w/o whatever property release)... can I "photograph" your photograh and sell it too ?

This might be a reasonable stance in cases where you work goes beyond what is normally thought of as breeding and grooming. The kind of protection you are talking about — for your art — would fall under copyright. In order to have copyright protection, you would need to meet the threshold of originality and show that your work in grooming is sufficiently original to warrant copyright protection. Additionally you would need to show that the product of your grooming is a creative expression rather than a useful article as these are not protected by copyright.

There is law protecting the intellectual property of plant breeders who create new varieties (Plant Variety Protection Act of 1970) and of course patent law, but I don't think these have any impact on photographers.

In the context of the current thread, these ideas are novel and fun to think about, but probably don't apply in practice.
Title: Re: Property Release Question
Post by: AlterEgo on August 19, 2015, 12:29:17 pm
This might be a reasonable stance in cases where you work goes beyond what is normally thought of as breeding and grooming.

well, how about applying the same logic to photograhy too  :D ? why do you think that photography is somehow different ? yet, I bet you want every shitty OOC JPG shot to be protected, no ?

Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 19, 2015, 12:35:54 pm
I have a question... I breed a dog, groom it, etc... this is my "art" - you photograph my art and sell it (w/o whatever property release)... can I "photograph" your photograh and sell it too ?

Yes, providing it meets the fair use and/or derivative works doctrine criteria.
Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 19, 2015, 12:38:27 pm
...why do you think that photography is somehow different ?...

Doesn't matter what Mark or I think, it's the law (a.k.a. collective humanity thinking).
Title: Re: Property Release Question
Post by: MarkM on August 19, 2015, 12:46:06 pm
well, how about applying the same logic to photograhy too  :D ? why do you think that photography is somehow different ? yet, I bet you want every shitty OOC JPG shot to be protected, no ?

Happily for a lot of photographers the threshold is one of originality not shittiness and the threshold is very low. The public domain would much enlarged if shitty photos were exempt from copyright.

Still,  the same logic has been applied to photography and there are several cases in areas like product photography where the threshold of originality is examined. Perhaps your grooming would meet a similar standard. Here's one case with a good discussion (scroll down to B:Originality and Derivative Works http://caselaw.findlaw.com/us-7th-circuit/1498587.html )

The more interesting question for me is whether as a category your grooming would be considered a creative expression. Many things such as typefaces, calligraphy, and recipes, that we think of as requiring creative work are not protected by copyright (in the US). This is because the utilitarian aspect of these things outweighs their creative aspect - at least in the eyes of the law. Where does dog grooming fall in this spectrum? No idea.
Title: Re: Property Release Question
Post by: AlterEgo on August 19, 2015, 12:57:47 pm
Doesn't matter what Mark or I think, it's the law (a.k.a. collective humanity thinking).
why not - this forum being for/about/etc photographers naturally tends to their needs and more often then not naturally thinks (posters) that photograhy is something of a higher value than for example dogs breeding... and whatever laws are in place the opinions are also interesting - do you respect an opinion of a dog owner, who spends way, way more time & $$$ w/ the dog(s) in question preparing for the exhibitions, etc than "you" with the photograph(s) of the said dog(s)... don't hide behind the law here... if you want to make money by picturing what I create then I want to make money by picturing what you create, tit for tat  :D ... now naturally the society has to put the proper laws in place to end the absurd situation when photographs are somehow different from calligraphy, for example.
Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 19, 2015, 01:10:41 pm
... if you want to make money by picturing what I create then I want to make money by picturing what you create, tit for tat  :D ... now naturally the society has to put the proper laws in place to end the absurd situation when photographs are somehow different from calligraphy, for example.

I already acknowledged in a separate post that it is ok to make money off my photography, under certain legal circumstances. As for future laws, feel free.
Title: Re: Property Release Question
Post by: David Eichler on August 19, 2015, 02:32:35 pm

The more interesting question for me is whether as a category your grooming would be considered a creative expression...Where does dog grooming fall in this spectrum?

Hmmm. While I think that the US copyright law is pretty straightforward, as laws go, I would think this might require a legal expert for clarification. I suspect that it is a matter of the degree of permanence. If that is the case, then grooming of a living thing wouldn't apply, but a tattoo might. Perhaps grooming of stuffed animal might, if it could be considered sufficiently original and permanent?

So far, it is apparently not even clear that tattoos can legally be considered art, but it looks as though there is enough grey area that the matter is open for litigation: https://www.legalzoom.com/articles/before-the-ink-dries-copyright-law-tattoos
Title: Re: Property Release Question
Post by: MarkM on August 19, 2015, 04:26:49 pm
Hmmm. While I think that the US copyright law is pretty straightforward, as laws go, I would think this might require a legal expert for clarification. I suspect that it is a matter of the degree of permanence. If that is the case, then grooming of a living thing wouldn't apply, but a tattoo might. Perhaps grooming of stuffed animal might, if it could be considered sufficiently original and permanent?

So far, it is apparently not even clear that tattoos can legally be considered art, but it looks as though there is enough grey area that the matter is open for litigation: https://www.legalzoom.com/articles/before-the-ink-dries-copyright-law-tattoos

Tattoos have an important difference from a hair style because no aspect of a tattoo is functional — it has no really utility beyond the artistic aspect. A dogs hair on the other hand does have utility. It's not uncommon to have cases where useful articles also have artistic components. In these cases copyright law protects only the artistic aspect that is "conceptually separable" from the utilitarian aspect. The design of a chair not copyrightable, but an painting on a chair is. If the artistic aspect can't exist independently from the utilitarian aspect, it's not copyrightable. This is why furniture and fashion don't generally receive copyright protection. There's a nice synopsis of the problem here: http://sunsteinlaw.com/copyright-decision-deals-crippling-blow-to-infringer-decorative-furniture-not-merely-functional/

It's a little absurd, but there's no reason you couldn't make a sculpture out of dog hair — something that rose off its back like a statue. That sculpture could exist independently from the dog, i.e. you could cast it in bronze. But a fancy poodle clip would be hard to separate from the dog because the dog itself is integral to the design. I'm guessing if I saw something like winged victory of dog hair sculpted onto that back of a dog and wanted to reproduce it commercially, I would seek permission. In any other case, probably not.
Title: Re: Property Release Question
Post by: MarkM on August 19, 2015, 05:04:16 pm
why not - this forum being for/about/etc photographers naturally tends to their needs and more often then not naturally thinks (posters) that photograhy is something of a higher value than for example dogs breeding... and whatever laws are in place the opinions are also interesting - do you respect an opinion of a dog owner, who spends way, way more time & $$$ w/ the dog(s) in question preparing for the exhibitions, etc than "you" with the photograph(s) of the said dog(s)... don't hide behind the law here... if you want to make money by picturing what I create then I want to make money by picturing what you create, tit for tat  :D ... now naturally the society has to put the proper laws in place to end the absurd situation when photographs are somehow different from calligraphy, for example.

I don't think we're hiding behind the law. I think the law supports a sound philosophical idea. One of the brilliant aspects of copyright in the US (IMO) is that the framers of the Constitution didn't couch the law in deontological ethics. The Constitution doesn't frame the problem in terms of what people deserve for their creative efforts or what is ethical and just for authors. They didn't define a natural right. They were clearly instrumentalist in their thinking and defined copyright in terms of societal benefits and costs.

If society thinks professional authors and artists are valuable, we need to make it possible for them to earn a living. It's almost impossible if we don't give them control over the reproduction of the intellectual property in such a way that they can monetize it. It's hard to imagine anyone being able to sell a novel if the author can't enter into contracts with publishers and prevent competitors from publishing the same work cheaper.

Dog breading, on the other hand, would seem to continue just fine if photographers don't need to reimburse them for photographing the dogs. The value the breeder is creating (i.e. the dog) is in no way diminished when someone reproduces their work in a photograph. It would be hard to make a practical argument that society benefits from preventing artists from photographing privately owned dogs. The value dog breeder bring to society can't be duplicated in a photograph. It would also be hard to show that dog owners are harmed when a photographer sells an image of their dog.

By defining the problem in practical terms we can avoid the whole problem of owing a perpetual debt to every idea that came before us and instead focus on maximizing the societal benefit we value. Many of the problems we have with copyright, such as ever-increasing time limits, come from forgetting its pragmatic intent and treating copyright like a natural right bestowed on authors.
Title: Re: Property Release Question
Post by: David Eichler on August 19, 2015, 07:57:11 pm
Mark, the flip side of some of what you have been discussing is that judges and juries may disregard the law or try to make their own law when there are grey areas. While the system provides possible remedies for this, there is no guarranty that such remedies will work, and it might prove very costly to try obtain such a remedy. The reason some lawyers give for recommending that photographers obtain a property release is that, while there is no law specifically requiring a property release, neither is there a law that specifically says that one is not necessary, which potentially leaves an opening for a judge to allow such a lawsuit to go forward. As a member of the ASMP and the chairman of one of its chapters, no doubt you are aware of the ASMP's organizational opinion on this matter.
Title: Re: Property Release Question
Post by: MarkM on August 19, 2015, 08:21:41 pm
Mark, the flip side of some of what you have been discussing is that judges and juries may disregard the law or try to make their own law when there are grey areas. While the system provides possible remedies for this, there is no guarranty that such remedies will work, and it might prove very costly to try obtain such a remedy. The reason some lawyers give for recommending that photographers obtain a property release is that, while there is no law specifically requiring a property release, neither is there a law that specifically says that one is not necessary, which potentially leaves an opening for a judge to allow such a lawsuit to go forward. As a member of the ASMP and the chairman of one of its chapters, no doubt you are aware of the ASMP's organizational opinion on this matter.

Yeah David, I'm definitely aware of ASMP's advice on the matter. It's no doubt based on the simple principle that by the time you're in a court room you've already lost regardless of the merits of the case.

Your post does make me curious though: what other potential liabilities do we preemptively protect ourselves from because the law doesn't explicitly permit an activity?
Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 20, 2015, 02:01:53 am
... by the time you're in a court room you've already lost regardless of the merits of the case.

Exactly. Property release or not, there is nothing preventing anyone to take you to court for whatever reason, with merits or not. So stop fretting and start living.
Title: Re: Property Release Question
Post by: AlterEgo on August 21, 2015, 11:19:23 am
http://yro.slashdot.org/story/15/08/21/0058248/germany-says-taking-photos-of-food-infringes-the-chefs-copyright

good move
Title: Re: Property Release Question
Post by: AlterEgo on August 21, 2015, 11:24:04 am
If society thinks professional authors and artists are valuable, we need to make it possible for them to earn a living.

the issue is that you are trying to exclusively decide on society's behalf... you pay to dog breeders and then earn your money by selling the photos... win-win... if you can't move one, there always will be somebody who can.

Dog breading, on the other hand, would seem to continue just fine if photographers don't need to reimburse them for photographing the dogs.

and so will photography... it does not depend solely on money making professionals, make no mistake


Title: Re: Property Release Question
Post by: D Fuller on August 22, 2015, 11:49:09 pm
If you are trying to avoid risk at all costs, than the reasoning that a release can't hurt is convincing, at least in the short term. But the above statement is much different than this:
"At all costs" seems a bit dramatic. It actually involves very little additional cost in the course of our productions. We are (or at least I am) talking about photos intended for what our releases call "commercial exploitation," not fine art or editorial uses. (That was my understanding of the OP's situation as well.)

Here it sounds like you know something about the legal basis of releases as they apply to pets that the rest of us don't. It would be nice if you explained your risk-avoidance reasoning rather than simply stating this as a fact. Or, if you know this to be a fact, cite a case or statute to support it. Of course this will be difficult because there is no statute or case creating a right to a pet's likeness.

I'm not sure anyone "knows" anything about any legal issue that doesn't have a specific statute or settled case law. My practice regarding releases is based on quite detailed conversations with our company's lawyer a few years ago. He introdiced me to the idea of "conversion" as a legal concept, and saw it as a real risk for commercial photographers and film makers. (Conversion is also mentioned in the ASMP article you and I have both referenced.) It's essentially the idea that I may not make money using something of yours without your permission. Our lawyer viewed releases as an effective form of risk management, because it would be pretty hard to make a case that I had used something without permission if you had signed a release, and it is through that lens that I have come to view releases.

So no, I don't know something that no one else knows, but I clearly do have a more conservative interpretation of the available information than most of the folks who have responded here. It's the result of taking a hard look at the risks involved and developing a policy to mitigate the risks. And for me, that policy has been reinforced by working for clients who demand copies of releases for just about everything in any video or photographs I've done for them. They don't really want to hear, "It's OK, you don't need one."

Communicating your intentions to a client in the name of politeness is different than asking them to sign a release. By asking them to sign a legal document, you perpetuate the idea that a release is required. By communicating that a release is required when it is not (and further commenting on forums like this that a release is needed) you erode the rights of all photographers. As photo attorney Carolyn Wright has repeatedly said (http://www.photoattorney.com/fear-of-lawsuits/) regarding property release in general:

"If the building’s owner signs the property release, then you have little concern that he will sue you for the use of the photo. But what if he refuses to sign? Then you will have to find another building to photograph and ask for permission again. What if he demands payment? You then must pay for something that you are entitled to for free. If the building owner signs the release, he will expect the next photographer to ask for a property release, too. If permission is not requested, will the owner sue the second photographer for doing something within his rights? Will all photographers then have to get permission or pay for something when it is not legally required?

What other photographers’ rights will erode from fear of exercising them? The first step towards protecting your rights is to know them. The second is to stand up for them."


So if the bulding owner refuses to sign a release, then I have avoided the problem of his coming out in the middle of my shoot and asking what the Hell I'm doing shooting his building and having to defuse that situation. Clients don't usually like that sort of adventure. And again, I'm talking about a shoot where there will be commercial exploitation of the images. Fine art and editorial photography seem to me to be very different situations.

This is all, of course, just my my opinion. Maybe I'm doing it wrong.

DAF
Title: Re: Property Release Question
Post by: David Eichler on August 24, 2015, 05:28:18 pm
An instructive story that relates to the effectiveness of written contracts for avoiding lawsuits and the reliability of the advice of some lawyers: http://petapixel.com/2015/08/24/photographer-loses-copyright-suit-over-cc-licensed-photo-on-flickr/

It also emphasizes that you should make sure that you thoroughly read and understand the terms to which you are agreeing.
Title: Re: Property Release Question
Post by: MarkM on August 24, 2015, 05:30:59 pm
Just for the record, I would not advocate the practice of not obtaining property releases, especially when shooting on private property. Like you, I think there are a lot of unknowns and potential liability from issues we rarely think of such as plain old negligence on the part of the photographer.

The original post, however, deals with a much different situation. He seems to have the support and permission of the location owner, but wonders if owning something like a dog also conveys the right to control images of the dog and commercial use of said images. While it's often not difficult to get a release from a property owner at the same time you received permission to shoot on the property, it is not always easy to get a release for every object, such as a dog, in the photo. Especially if the value of the photo is not clear until long after the shoot.

You have suggested that ownership of the object conveys the right to control commercial images of that object. I wonder where that right comes from and what the owner's legal complaint would be when the perceived right is stepped on.

My practice regarding releases is based on quite detailed conversations with our company's lawyer a few years ago. He introdiced me to the idea of "conversion" as a legal concept, and saw it as a real risk for commercial photographers and film makers. (Conversion is also mentioned in the ASMP article you and I have both referenced.) It's essentially the idea that I may not make money using something of yours without your permission.

So maybe that right comes from conversion. The above definition (making money from something that's not your) is not a particularly good definition of conversion. One of the key ideas behind conversion is that you deprive the rightful owner of use and possession of property. A photograph of an object does not deprive the owner of possession of the object. Still, Prosser in his exploration of tort law has this to say about conversion:
"Highly technical in its rules and complications, perhaps more so than any other except defamation, it almost defies definition"

So there's clearly room for disagreement. I am clearly not a lawyer and it seems you have the advice of a lawyer telling you conversion is a possible risk. Obviously you should take their advice. But if they were my lawyer I would ask what the owner of some property would need show to make an even moderately plausible case for conversion in the case of a photograph.

I would also ask about this case: https://casetext.com/case/college-of-charleston-foundation-v-ham where the property owner's suggestion that commercially exploiting a photograph of private property constituted conversion was handily shot down by the judge. It's a good read if you are interested in this subject.
Title: Re: Property Release Question
Post by: Slobodan Blagojevic on August 24, 2015, 05:35:33 pm
An instructive story that relates to the effectiveness of written contracts for avoiding lawsuits and the reliability of the advice of some lawyers...

I fail to see how the story "relates to the effectiveness of written contracts for avoiding lawsuits and the reliability of the advice of some lawyers."