I’ve written several times over the years about property licences.
Basically saying that in general there seems to be no justification for them, either in this country or in the US, although that doesn’t stop some agencies and libraries asking for them, and certainly some clients won’t use your work without one.
I’m not a lawyer, but in the past I’ve read all the legal advice I could find in books and on-line about the issue, and been unable to find anyone suggesting there was a legal basis for the requirement.
One site that I trust more than most is PhotoAttorney, written by Carolyn E. Wright, of Decatur, Georgia and a real expert in US Law as it applies to photography, and this week she has again repeated her position, which goes a little further than mine – and certainly carrys rather more authority – that it is probably “detrimental for photographers to obtain property releases.”
Her comment applies to all kinds of property, although where I most often come up against it is photographing buildings. Fortunately I don’t work in the USA, where photographers have to do a little research as architectural historians, since – as it says on the US copyright site, “Copyright protection extends to any architectural work created on or after December 1, 1990.”
In the UK, copyright law specifically exempts buildings, and we can probably photograph almost any building from a public place without worrying about copyright – and generally make use of the images without copyright releases.
There is even apparently no problem when photographing sculptures that can be seen ordinarily from a public place in the UK, although you do need to respect the artist’s moral rights – in terms of attribution and not treating the work in a derogatory fashion, at least if the work is included in more than an incidental fashion.
There are also a few well-recorded pitfalls. If you want to photograph the Eiffel Tower, don’t do it at night, because although the structure can be photographed freely, its lighting is apparently copyright (and copyright is also claimed on some other buildings – including the Louvre and its pyramid.)
However even in France it is likely to be OK to publish pictures so long as your picture is a wider view including other buildings, and copyright laws in some other countries do not recognise the French claim. Well-known properties in London which are claimed to be copyright apparently include the London Eye and the Gherkin . You can read lists including these and other claims on some stock photography sites, such as iStockphoto.
Buildings, particularly in the US, can also be trademarked, which can also put their use off-limits for commercial photography without permission – and examples of these are also given in these lists. At this year’s NUJ Photographers Conference barrister Henry Ward, who specialises in copyright, gave the opinion that this “doesn’t hold water” in the UK (but also gave apparently contradictory advice on the copyright of buildings such as the Gherkin, at least according to the London Freelance feature.)
One problem familiar to UK photographers is the London Transport logo. If this is the point of your picture you may have problems (although probably unless you were actually using the image to promote something transport-related there would be little actual legal case) but it would clearly be unreasonable for any objection to be made if it is incidentally included in your picture taken on a London street.
Back to the PhotoAttorney blog, Wright’s recent posting on property releases is of particular interest, because it recounts a case where the need for these is currently being put to test. The College of Charleston Foundation has taken photographer Benjamin Ham to court over a picture he is offering for sale of some of their trees, accusing him of trespass, invasion of privacy and ‘conversion’ – which appears to mean profiting from the use of college property in his picture.
As Wright points out, some of the claims seem odd, and at least one unsupported by any reference to a specific law, but it does seem as if this may be an important test case for photographers – assuming that it is taken to a conclusion.
However a complication in the case is that the College alleges that the photographer “passed through locked gates” (how?) and ignored signs prohibiting trespass in order to take the picture.
It will be interesting to see whether the case is actually determined by a court, and if so what the decision will be – and I look forward to reading Wright’s comments. However the parties may well come to an agreement out of court.
