Property Release Question

[Colorado David]

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.

[Some Guy]

This?  http://asmp.org/tutorials/using-property-releases.html

SG

[Slobodan Blagojevic]

He should contact an attorney and get a definitive answer...

Hahahahahahhhahahahahaha!!!

[Slobodan Blagojevic]

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.

[Slobodan Blagojevic]

... 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.

[D Fuller]

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.

[Slobodan Blagojevic]

... 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.

[Slobodan Blagojevic]

... 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.

[David Eichler]

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

[Colorado David]

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.

[D Fuller]

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.

[D Fuller]

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

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

[MarkM]

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 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."

[AlterEgo]

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 ?

[MarkM]

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.

[AlterEgo]

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  ? why do you think that photography is somehow different ? yet, I bet you want every shitty OOC JPG shot to be protected, no ?

[Slobodan Blagojevic]

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.

[Slobodan Blagojevic]

...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).

[MarkM]

well, how about applying the same logic to photograhy too  ? 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.

[AlterEgo]

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   ... 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.