Property Release Dilemma

The stock photo industry is rapidly moving to the point where there are more photo
subjects you can't use for commercial purposes than those you can.

Everyone wants "iconic" photos that viewers will instantly identify with certain
concepts, but there are property and trademark rights connected to many of these


iconic subjects. A couple examples: New York Stock Exchange and Commercial
Aircraft.

An image of the New York Stock Exchange immediately invokes the idea of U.S.
business, commerce, wealth, finance, investment, the economy, NY City landmark,


etc. Everyone involved in the financial investment industry would like to use an
image of the NYSE from time to time. But, this location is private property and
images of the trading floor cannot be used without permission. The NYSE does allow
such images to be used for editorial purposes and by member companies for
commercial uses, but non-member companies are not allowed to use images of the


exchange floor in their literature.

It has generally been advised that it is OK to license commercial rights to
exteriors of the NYSE because such images are shot from the public street. However,
PACA and Getty Images differ on this point. PACA's recommendations say it is OK,
but Getty says you need a property release for both interiors and exteriors of the
NYSE.

Pictures of commercial aircraft are used to represent transportation, travel,
aircraft industry and people on the move. There are property and trademark rights
involved here too. The general advice given when photographing this subject matter
is that all logos and identifying marks should be air brushed out and removed, or
the planes should be shot from angles that don't identify the particular airline.
This means that you end up seeing a lot of aircraft at sunset or sunrise so they
are in silhouette, or the planes are shot from strange angles to avoid showing
identifying marks.

This may solve the problem for the moment, and as far as I know there have been no
major suits brought by airlines or manufacturers, but it does raise some
interesting questions. First, is it sufficient just to strip out an airline's name
and logo, or is it necessary to remove all identifying marks? For example, many
airlines have colored strips along the fuselage or around the nose. The airline's
name may not be visible, but anyone in the industry looking at these markings can
immediately tell which airline owns the plane. Is that sufficient for a company to
bring legal action if they don't like the way an image was used?

In researching this article, I looked at the images of "commercial aircraft" on
Getty's site. Several things are of interest. Logos on the Hulton pictures had not
been airbrushed out to meet the above standards. This protects the historical
authenticity of the image, but is that a legal defense if the image is used today?
And what happens when the 1990's become historical, and there are no historically
accurate images? In addition, it seemed that the standards were more lax for RF
images than for those of the major RM brands. RF images often had markings (not
logos) that would make it possible to identify the aircraft owner. It's certainly
possible that these RF suppliers had a property release from the aircraft owner,
but I wouldn't bet on it. In looking at the RM images it appears that the editing
is much tighter when it comes to having property releases and much more restrictive
than on the RF. (One would think that if anything it should be the other way
around.)

Another point to consider is does anyone have a property release from Boeing or
Airbus Industries for the use of any of these images? In looking at almost any
angle of these aircraft the manufacturer can immediately be identified even if
there are no markings. Does the manufacturer have any continued rights? One might
think that since the airlines have paid millions of dollars to purchase these
aircraft they own them and they control all the rights as to how the images can are
used. Maybe. Maybe not.

With that thought, let me jump cars. I recently talked to a photographer who has an
extensive file of images of classic cars from the first half of the 20th Century.
These cars are currently owned by collectors, and the photographer has property
releases from the current owners. An agency was interested in this subject matter,
but when the images were finally presented the deal breaker was that the
photographer did not have a property release from the car manufacturer. Of course,
in nearly all cases the manufacturing company no longer exists so there is no way
to get such a release.

While we're talking about cars we know that a release from the current owner of the
car is no more than a first step to getting valid property rights protection. It is
the car manufacture that really controls how the image will be used. Car
manufactures with unique logos and brand or model names such as Maseratti, Porche,
Rolls Royce, Thunderbird, Mustang and Chevrolet are particularly aggressive about
protecting their trademark rights by going after any unauthorized use. A property
release from an owner of one of these vehicles won't provide any protection. The
fact that I haven't listed other car manufacturers is no assurance of protection.
They could change their policies tomorrow and that could impact on images, already
created and in the files, that may be used sometime in the future.

While we're on the subject of motor vehicles, I recently heard about photographer
who took some pictures of man who builds custom cars of his own design. This man
signed both a model and property release, but that wasn't sufficient for one agency
to accept and market the images. The agency was concerned that some of the parts
used in building this car, such as a headlight, might be identifiable and that the
parts manufacturers might sue.

If you're coming to the conclusion that nobody knows what the rules are your right
on target.

Photographing Tourist Attractions

Photographing tourist attractions for stock is getting tougher also. More and more
frequently photographers are being asked to supply property releases of the
locations they photograph.

In Germany the railway company Deutsche Bahn has a copyright on their ICE train and
this prevents anyone from using a picture of the train for any type of commercial
purpose, even if the train is photographed from a public place as it rolls through
the countryside. According to Stefan Hartmann of Visuell Deutsche Bahn's right to
restrict such uses was recently upheld in a German court. Even uses that would
positively promote train travel are prohibited unless cleared with Deutshe Bahn
first.

Other protected locations in Europe include the Pyramide of the Louvre in Paris and
the Eiffel Tower at night (because of the rights of the company which installed the
illumination). A bridge in Amsterdam is protected because of the rights of the
architects and the London Underground sign is also protected.

Recently the German Bundesgerichtshof (Supreme Court) decided that the
Hundertwasser House in Vienna, Austria is protected and that photos of it cannot be
used in any commercial sense such as postcards, calendars, etc. without permission
of the heirs of the family that built the house. It probably won't be long until
the owners of every tourist attraction get the idea that they are losing revenue if
they don't get a piece of the action every time a picture of their attraction is
used.

An added complexity is that laws differ in various countries and photographers who
travel from country to country may not be fully conversant with all the laws of the
location they are photographing. In some places it may be legal to use pictures
taken from a public vantage point, but in other countries it may not.

We've also heard that photographers who have taken pictures of Southern Antibellem
architecture from public streets are finding it difficult to get these images
accepted by agencies unless they can produce a property release. Such buildings are
classic examples of "Americana," but then much of what is identified as Americana
would not be usable for commercial purposes without a release.

Everyone wants high concept, iconic pictures because such images tend to get used
in a bold, upfront way and thus often command high dollars. But by definition a
picture is iconic because it is instantly recognizable by a large segment of the
population.

Figuring out where to get a release can be difficult. Recently a stock agent was
trying to determine if there are any trademark or copyright restriction in using
images of the Jardins of Andre Citroen in Paris. The park is not just a garden. It
also has a number of major architectural buildings and sculptures located within
it. Part of the stock photographer's dilemma is in knowing what to waste time
shooting and what to pass by.

For the photographer on the scene it is often very difficult to find where to go to
properly request permission. But it is even more difficult for an agent to know
where to get accurate information when a photographer brings in a set of images
without a release, or any information about where to obtain one. The agent often
knows very little about the location or what might be required in any particular
situation.

Why Do People Sue?

In addition to sharing in the compensation, there are a variety of reasons why
property owners want to be careful about protecting their rights. If the subject of
the image is used as a trademark, the property owners can actually lose their
trademark rights if they don't show that they have aggressively pursued
infringements of their trademark. They also don't want others benefiting from the
name and reputation they have gone to great expense to build, unless they are
compensated in some manner.

Possibly more important is that most property owners don't want an image used in
any way that will reflect negatively on their business. The same is true of
entertainers and sports personalities. To the degree possible, it is in their best
interest not to support anything that reflects negatively on them, and with the
exception of press freedoms, in most cases people have a right to protect
themselves in this way.

For this reason, the more important the person or property, the more they want to
carefully control each use of the image and can be very reluctant to grant an
unrestricted right to make any use whatsoever of the image in the future. The
challenge stock photographers and stock agents face is that at the time the image
is shot, when it might be relatively easy to obtain a release, they have no idea of
the context in which the image might eventually be used.

Take all this to its natural extension, and in the not too distant future, it may
not be possible to make commercial use of any photo of a real situation without a
full set of property and model releases for every conceivable thing in the photo.
Since blanket property releases are often difficult to obtain photographers may
decide that it is not worth their trouble to take photos of real situations. In the
future, photographers who want to produce stock images that can be used
commercially may be well advised to concentrate on creating totally fictitious and
unreal situations that can be manufactured in the studio or in Photoshop. And be
sure not to use any props that are products available for commercial purchase.

In many cases images of subjects where commercial use is risky can be used for
editorial purposes. However, it is becoming increasingly difficult to find an
agency that will accept images that are restricted to editorial usage alone and to
mark them as such.

Books are also a gray area. Sometimes they are considered editorial, but in other
cases they are commercial. If a book's subject is newsworthy or of public interest
the images inside and on the cover (if the cover relates to the inside material) is
considered editorial. This would cover most travel books. If a book is fiction,
anything on the cover needs a release.

Even when there is case law on the side of allowing certain usages the very fact
that there has been some type of legal action may cause many agencies to shy away
from accepting images on the subject. The Rock & Roll Hall of Fame is a good
example. There was a law suit a few years ago where the R&RHF tried to enforce what
it believed were its trademark rights to a representation of its building. After
much legal back and forth the courts determined that an image of the building taken
from a public street could be used for the commercial purpose of producing and
selling a poster without the permission of the R&RHF. The court rejected R&RHF's
claim that their building was a trademark. Nevertheless, in one sense the R&RHF
won. Now, most agencies won't offer an image of the building for licensing. As one
industry representative put it, "It's not because they (the R&RHF) are right, it's
because they are a pain." In other words, it's not worth the potential revenue you
might make from licensing rights to such images for the legal harassment you're
likely to have to go through.

How Much Risk Is Reasonable?

Some photographers argue that being in business involves taking risks and feel that
in many cases the risks of a problem arising are so minimal that the risk should be
accepted as a normal course of doing business. They can also point to many
instances in the past where pictures of cars, airplanes and the NYSE have been used
without having a property release, and with no legal action being brought against
the photographer or anyone else.

On the other hand, stock agencies can point to individual cases that have been
costly in legal fees and settlements. They want to do everything possible to avoid
such problems in the future. It is certainly fair for large corporations to do
everything they can to minimize their risks.

In one sense it is possible to understand the paranoia of the big corporation.
Given their size, they are targets for law suits. They also carefully weigh the
potential return from any given image against the risk. If there is the slightest
chance that someone might decide to bring legal action it's not worth the risk to
handle the image. But that means many images legitimate customers would like to use
will no longer be available.

Possible Solutions

There are some possible solutions to this release problem, but for the most part
they are solutions the agents and middle men don't like to contemplate.

One option is to license all images as unreleased, and make it a condition of the
sale that the user must obtain all necessary clearances and take full
responsibility if those clearances are not adequate. The user must indemnify the
photographer and the agency if there is a claim for unauthorized use.

The larger companies don't want to do this because it is not "user friendly". But
customers might prefer this option rather than not having access to images of the
subject matter at all. A worse case is for the user to have the false sense that an
image is released and cleared for any type of usage when, in fact, some aspects of
the image may not be properly released.

Image sellers could provide a further service to the customer by providing contact
information for the person authorized to sign a release. Unfortunately, I don't
know of any agency that is operating in this manner at the present time. Most
prefer to either have a blanket release, or to not handle the picture.

One advantage for the property owner in providing a specific release for each use
is that they know each case exactly what the use is going to be. Many property
owners don't like the idea of signing a blanket release because they are not sure
they can anticipate all the ways the image might be used and the negative
implications of each. On the other hand, there may be a number of uses they would
freely grant so long as they clearly understood the limits being placed on the use.
Asking a property owner to sign a blanket release that covers any future use
whatsoever is likely to get a blanket NO.

Many business and entertainment personalities are reluctant to allow blanket use of
images of themselves, even for certain editorial purposes, because some uses may be
negative. Consequently, they are often unwilling to allow certain feature coverage
of their activities unless it is clearly defined for one specific use, or they are
assured that they have veto power over future uses.

A system that would allow the individual or property owner to either carefully
define the uses of certain images that are authorized, or to retain veto power over
any proposed use, might make it possible to offer a much broader selection of
imagery for commercial use than is currently available.

Subjects Requiring Specific Clearance For Commercial Use

I have been asked for a "definitive list" of photographic subjects that it are
risky to license for commercial use. Part of the problem as I've outlined above is
that there is no way to produce such a list. It may be possible to produce a list
of companies that have brought legal action in the past, and thus have a propensity
in that direction, but there is no guarantee that in the future other totally
unrelated companies won't try to control the use of photos of their facilities and
operations. These actions may be aimed at images that have already been produced
and are already in the files.

The only thing we can say for sure is that there is a greater trend in this
direction, and thus the lists are likely to get longer and more inclusive as we
move forward.

Below, I've produced a list of properties and objects that combines the lists
offered by Getty Images, PACA (Picture Archive Council of America) and includes a
few additional subjects that various agencies and lawyers have passed on to me.
This list is not intended to be complete. It simply itemizes situations where
issues have been raised in the past. Given past problems, many sellers are likely
to be very nervous about offering images of these subjects for sale. Thus, from a
photographer's point of view, it may not be productive to spend any time producing
images of these subjects unless you have very specific guidance from your agency in
advance, or can obtain a very comprehensive release.

Trademarks and Logos

Logos are the emblems of a company, and are protected by Trademark law, as well as
by copyright. Generally these are two-dimensional graphics (such as the Nike
"swoosh") but certain distinctive three-dimensional objects (such as the Coca-Cola
bottle) may also be Trademarks. Occasionally even a certain color scheme may be
problematic in a certain context (such as the green and yellow of John Deere
tractors.)

Nike swoosh
Coke bottle
I-Mac computer
Hershey's kiss
Olympics Athletes, Logo and torch
Pro Sports teams and insignias
Major league sports
Nascar images
Vehicles with recognizable designs:
    Jaguar, Porche, Lamborghini, Maserati, Daimler Chrysler
    Rolls Royce Car and logo/hood ornament
    Chevrolet logo/hood ornament
    Mustang Horse Logo
    Thunderbird Logo
    BMW
McDonald's Arches
Beverly Hills Sign
Oscar award statue
Emmy and Grammy award trophies
Hollywood Sign
The British Concord
John Deere tractor
Igloo cooler shape
Johnson's Baby Oil bottle
ReaLemon container
Taster's Choice coffee container
Michelob beer bottle
Duracell battery design (copper top)
Cruise ships, especially with logos or readily identifiable appearance.
River boats such as the Delta Queen, The Mississippi, The Natchez
Licensed characters, such as Disney or Warner Brother cartoon characters.
Barbie -- the dolls, name and any product
Smokey Bear
Woodsy Owl
Mounties uniform (Royal Canadian Mounted Police)
Red Cross
Fire Wire logo

Buildings and Places

Photographs of private property, especially homes, require releases. This includes
many famous and public buildings, unless they are part of a general overall skyline
photo.

New York Stock Exchange -- (Both interiors and exteriors are a problem. Companies
that are listed on the NYSE can obtain permission to use pictures of the
exchange.)

The Pacific Exchange

The Mercantile Exchange

Commodities Exchange and Chicago Board of Trade

Disney's Epcot Center and Disneyland - including any depictions of the Disney
characters

The Lone Cypress tree at Pebble Beach, CA

Williamsburg and its re-enactment actors/performers

Newport Mansions

Dartmouth College and the "tower"

Rock & Roll Hall of Fame

Rockefeller Center -- all buildings and sculptures

Hollywood Walk of Stars, Chinese Theater

Mystic Marine Museum

The Mississippi, Delta Queen and Natchez paddle steamers

Biltmore Estate -(Ashville, NC)

San Simeon in California -- (Hearst Estate)

Busch Gardens

Sea World, Florida & California)

Universal Studios

Coca Cola World

The Cadillac Ranch -- (sculpture of Pink Cadillac's sticking out of ground like
Stonehenge)

The Louvre & IM Pei's Pyramid

San Diego Zoo

Indy 500 race

The Grand Ole Opry

Eiffel Tower at night (the lighting design is copyrighted)

Swan Boats in Boston's Public Gardens

The Flatiron Building, NYC

The Chrysler Building, NYC

The New Orleans Superdome

TransAmerica Building, San Francisco

Canadian National Tower in Toronto

Space Needle, Seattle

TGV train in France

Eurostar Train

Japanese Bullet Train

London Regional Transit symbol, the "Roundel", (The round tube logo and the tube
map.)

Monticello, VA

Stone Mountain, GA

Statue of Christ, Rio de Janeiro, Brazil

Lone Cypress tree at Pebble Beach, CA

Litte Mermaid statue in Copenhagen

Things

Domestic Animals -- especially dogs, cats and horses, (If they are at all
recognizable. They are considered private property.)

Flags -- Flags are tied closely to national identity. Some countries have
laws prohibiting the use of the national flag for any commercial purpose.

Currency -- Color, full-sized images (partial depictions are ok) of paper
currency, checks, or bonds. All coins are ok. These laws differ from country to
country. For example UK pound notes can only be reproduced with authorization of
the Bank of England.

Printed Materials -- Book covers, magazines, newspapers (Wall Street),
illustration in kids books, etc, are protected by copyright. This could also
include copyrighted prose or poetry. A close up shot of the monument that has
Martin Luther King's "I have a Dream" speech might constitute copyright
infringement because the speech is protected by copyright law.

Toys and Games -- Protected by copyright and trademark.

Maps -- Maps are protected by copyright unless they are created by a U.S.
government agency like NOAA, USGS, Forest Service, etc. The US government holds no
copyright in the works it creates.

Logos on clothing -- This includes unusual or identifiable patterns,
especially if they incorporate logos or are on designer-label clothes. Some
examples are the Nike swoosh or the Ralph Lauren polo player. In some cases you can
get by with retouching such logos, but if there is something distinctive about the
cut of the clothing so it can be recognized even without the logo then retouching
may not be enough.

One example to be aware of is that there have been cases where numbers of NFL
football players were removed, or altered, and uniform colors changed, and it was
still judged that the photo was trying to refer to professional football and
therefore it was still a violation of trademark.

Art - Paintings, sculpture and drawings are protected, unless in the public
domain or with the permission of the copyright holder. This includes sculpture and
other public artworks in parks, building or public places, etc. Works of art that
are old enough to be in the public domain (generally 75 years after the artist's
death) are not protected.

Examples:

Certain modern furniture, if by a major designer and it is the focus of the photo.
Picasso sculpture in downtown Chicago
Vietnam Memorial in Washington, DC (The statures only, the Wall is OK.)
FDR memorial in Washington, DC
FDR memorial in Hyde Park, NY
Atomium in Brussels, Belgium

People

Finally, when we're talking about releases we must not forget people. Personal
releases are required of any person whose face is recognizable. In addition you
should have a release of any person who could potentially recognize themselves,
based on clothing, location, body, etc.

Getty says you need releases of any celebrities or well-known persons living or
dead except for pre-20th century political/historical figures, such as George
Washington or Napoleon. (That's assuming, of course, that you can get a picture of
George or Napoleon. A picture of a painting or sculpture of these men might be OK
to use without a release, provided its old enough. But if the painting or sculpture
was produced by a 20th century artist it might still be under copyright.)

Feedback:

From: Ray Laskowitz