Buckle up. This one is a bit complicated, but as I posted the last article about contracts and model releases located here, and then was asked to write another explaining property releases, I am attempting to do my best in this article. But before I do, here is a disclaimer...
I am not a lawyer or attorney. I have no training or expertise in contracts or business legal matters in general. Take anything I tell you and run it by your own attorney for validation and clarification.
We know that if you are not going to sell a person's image for use in advertisements or for comercial means, then you don't need a model release. You can shoot away with no worry. Especially if you capture the image while standing on public property like a park or a sidewalk, or even private property if you have the owner's permission. Provided, of course, that there are no local statutes stating otherwise. All of that was covered in my previous article.
But what about property? Well first of all we need to make sure that you understand that "property" also includes other things besides a piece of land or a building. It includes things like works of art, pets, cars, or anything owned by an individual.
Well here is the deal.... In all the research I have done, I could not find a single incident where a property release was needed and used in a court case. Really? Yep. Really. I was just as surprised as you. Not saying there is not one out there floating around somewhere, but I could not find it. In the legal world, this is still kind of up in the air because there has not been a settled court case involving one.
But we still need to protect ourselves anyway based on a few established legal theories. What are those theories? One is called Association and the other is called Conversion. And here is what they mean...
This basically means that a person's identity could be "associated" or connected to that piece of property. Here is a scenario for you to explain what I mean. Suppose you take a picture of Bill's used car lot. Then that picture was used in an article about how cars are stolen, the vin numbers forged, the odometer rolled back, and resold to the unsuspecting public. Since everyone in town knows Bill's Used Car Lot, Bill could get mad and claim defamation of character because you suggested he was doing something illegal and therefor are hurting his business. He could sue. Make sense?
This just means that you used someone's personal property for your personal gain. For instance, suppose you know of this great old falling down barn outside of town. You head out, stand on public property (the road) and shoot a picture of the barn. You then turn them into greeting cards and sell them for $1 a piece. You sell a million of them and make a million dollars. That is conversion. But here is the deal. There has never been a settled court case involving this type of situation. At all. In fact it is generally understood US law that if you are on public property when you take the picture of the building on private property, then you are good to go. There is something called Photographer's Exception that makes the above situation totally covered. Mostly. I will explain in a minute. But step onto the actual property and no longer be standing on public property, the Conversion theory will get you. Bottom line, stand on public property when shooting buildings on private property. Unless you get a property release from the owner.
So just what the heck is Photographer's Exception? Well a building owner could have a copyrighted building because of the look or appearance. Buildings built before December 1, 1990 have no copyright status, but those after could. However, The Photographer's Exception to this clause allows for you to shoot buildings that are easily visible from public property. It gives wide leeway to photographers and covers things from gazebos to skyscrapers. For example, everyone knows what the new World Trade Center building in NYC looks like, and that is a copyrighted building, but I can stand on the street all day, take pictures of it, and sell them to the public. Unless there is a local New York City statute that prohibits me from doing so.
But if the building itself is considered art - possible but not likely - or if a work of art has been erected on the property or is attached to the structure, then a property release from the copyright holder is strongly suggested. If the work of art was not the primary focal point in the photo, or if the image was used for educational purposes, used for research or documentary purposes, or even in criticism, then it would be considered "fair use". However, an agressive copyright holder could make your life a legal hell by suing you anyways. So getting a release is a wise decision.
OK so where can you get a good Property Release form? Right here of course. Click the below link and add it to your collection. It was copied word for word from iStockphoto.com. It is what they want you to fill out if you try to sell stock photographs on their site. I figure if it is good enough to protect them, it is good enough to protect you.
Property Release Download.