Property Release Question

[Slobodan Blagojevic]

... 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  ... 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.

[David Eichler]

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

[MarkM]

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.

[MarkM]

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   ... 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.

[David Eichler]

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.

[MarkM]

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?

[Slobodan Blagojevic]

... 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.

[AlterEgo]

http://yro.slashdot.org/story/15/08/21/0058248/germany-says-taking-photos-of-food-infringes-the-chefs-copyright

good move

[AlterEgo]

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

[D Fuller]

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 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

[David Eichler]

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.

[MarkM]

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.

[Slobodan Blagojevic]

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."