Thanks once more to Photo Attorney Carolyn E. Wright fora very interesting post on her blog pointing me in the direction of A House’s Right of Publicity, posted on Wednesday on the Property, intangible blog about Robinson v HSBC Bank USA, a case in which Mr Robinson sued because a pictures of his house had been used in a flyer distributed with the San Francisco Chronicle advertising the bank’s “Premier Mortgage.”
Robinson’s lawyers put up seven different cases under US and Californian law as to why this usage was a breach of his rights, and all were thrown out. A comment on the fotoLibra blog, comes down against the decision, on the grounds that it was “discourteous in the extreme not to request permission of the owner.” Well perhaps so, but that doesn’t make it illegal.
FotoLibra also challenges the policy of the UK National Trust, who as many of us know have for some years been attempting to impose a ban on the photography of their properties other than “strictly for private use” – and have managed to get many photographs of these buildings removed from image libraries, including pictures taken from outside of their property.
Many have questioned the legality of their position, as well as the morality of banning photography of buildings which are owned by them on behalf of us, the nation. But although like fotoLibra we might “defend the right of people to photograph what they will, and sell those photographs if they can, if they are to be used in an educational, illustrative, informative or editorial function” we would also like them feel that, on our behalf the National Trust should both have to give consent and also receive payment for images of our property being used to promote commercial gain.
So the US decision is good in some respects but bad in others. What would be good is a clear ruling that distinguishes editorial and related usages from commercial use.
Recently in the UK, press photographers have been told by police and PCSOs that they need a permit to photograph in Royal Parks in London, which include Victoria Tower Gdns next to the Houses of Parliament. Here I was approached and informed of this by a PCSO on Sat 24 July. The alleged need for a licence laughably also includes Parliament Square where I have taken literally thousands of images this year alone.
The first time I heard of this happening was a couple of days earlier, where a demonstration had been taking place outside Buckingham Palace against the invitation to a BNP MP to attend one of the Queen’s garden parties. Obviously police had been dredging around to find some pretext to try and prevent reporting and someone had come up with this.
The distinction between commercial and editorial photography has long been understood and it is one we need to continue to insist on.
So do we need property* releases? In general for commercial use we do (despite the US case) and for non-commercial use the answer continues to be no. So far as the National Trust is concerned I think it is clearly no so long as we are on public land when we make the photograph, but perhaps less clear once we have gone on to National Trust property. Although the National Trust acquires property on behalf of the nation, often in lieu of tax payments that would have gone into the national exchequer, by some legal sleight of hand (which certainly should be illegal) it isn’t ours. And it probably won’t be long before it is completely privatised and then taken over by some Spanish-owned company.
[*Readers are reminded that property doesn’t just mean bricks and mortar but refers to anything that someone owns. So unless you own everything that appears in one of your photographs it probably needs a property release.]