Copyright on private property

May 11, 2009 12:42 PM

If I take a photo in a restaurant or other business, do I own the copyright of that image?

Are there restrictions on how I can use it, assuming I don't misrepresent it? Could I sell the image? I'm assuming here that whatever I'm taking a photo of isn't itself covered by copyright or trademark. A glass of ice water for example, or an exit sign.

I know they can have a policy that I can't take photos. But I'm also assuming no such policy is posted, and no one bothers to tell me to stop taking pictures. So setting that aside.

Perhaps a more general question would be - Does taking a photo on private property mean I don't own the copyright?

posted by y6y6y6 to law & government (29 comments total)

Pretty much, although a few owners of landmarks have asserted copyright over pictures of their landmark. For example, if I recall correctly, Eiffel tower's lighting is apparently copyrighted. And I think some museum in the US tried to claim copyright over pictures (I think it was the Rock 'n' Roll museum). It's hard to remember, and also hard to google for.

But I think it's pretty rare. You always own the copyright to the work your produce, but the question is whether a third party also has a copyright claim.
posted by delmoi at 12:53 PM on May 11

"but the question is whether a third party also has a copyright claim."

Well....... that's essentially my question. Does a property owner have a copyright claim simply because the image was taken on their property? If someone else has a legitimate copyright claim I can't just make money from the image willy-nilly. I suppose "legitimate" is the important part there.
posted by y6y6y6 at 1:01 PM on May 11

Does a property owner have a copyright claim simply because the image was taken on their property?

No. Owning the property on which a photograph was taken does not by itself give the property owner any copyright claim to the photograph.
posted by applemeat at 1:07 PM on May 11

Copyright also covers "derivative works". That means you can't take someone's book, change the names of the characters but make no other changes, and then sell it as your own. With such few and unimportant changes it's considered a derivative work, and that means the original author holds copyright, not you.

Using a photocopier to make a copy of a book doesn't give you copyright over the copy. It's a derivative work, and the owner of the copyright of the original book thus owns the copyright of the copy. (Leaving aside for the moment the question of "fair use".)

By the same token, depending on the photograph and how it was taken, a court may judge that the subject of the photo was copyrighted and the photo is a derivative work, in which case the copyright on the photo would belong to the owner of the original copyright.

For example, some paintings are copyrighted. If you take a picture of a painting and then sell T-shirts with the picture on the shirts, you may be violating the painting copyright.

As Delmoi mentioned, certain museums and historic sites have claimed copyright over their buildings and scenic vistas. Now maybe that's something a court would support and maybe not, but if the court did uphold that copyright, then a photograph of the building/scenic vista would probably be judged to be a derivative work, and thus the museum would own copyright on it, not you. (I'm not convinced it would even be joint copyright.)

IANAL.
posted by Chocolate Pickle at 1:08 PM on May 11

I'm assuming here that whatever I'm taking a photo of isn't itself covered by copyright or trademark.

Or rights of publicity.
posted by applemeat at 1:09 PM on May 11 [1 favorite]

Owning the property on which a photograph was taken does not by itself give the property owner any copyright claim to the photograph.

Correct. But pictures of buildings on the site could be protected. Buildings are creative works and in some cases are outright works of art (see e.g. Frank Lloyd Wright) and a photo could be considered a derivative work.

On the other hand, a photo of a particularly beautiful tree which was on private property would not raise this issue. You might be guilty of trespass when you got the photo, but the owner of the tree cannot hold copyright on that tree, because he didn't create it.
posted by Chocolate Pickle at 1:12 PM on May 11

Does taking a photo on private property mean I don't own the copyright?

Photographer's rights

The question comes down to, are you in a public place, and/or do you have permission from the owner to take photographs when you are in a private place. Since you acknowledge that you are IN the restaurant, which is a private space, that permission could be denied. At the same time, it's unclear whether such permission has been granted. In other words, no one can really answer this for you, because we can't tell what the restaurant has or has not been doing to encourage or discourage photos.

Also, keep in mind the difference between a copyright of the photo and whatever rights the owner of the property retains. For example, while I may go to Hollywood and take a picture of Lindsay Lohan walking down the street, I will own that specific photo and can sell it like a paparazzi does, I will not "own" Lindsay's face, so I can't use that photo to advertise my line of swimwear.
posted by Cool Papa Bell at 1:13 PM on May 11

But pictures of buildings on the site could be protected. Buildings are creative works and in some cases are outright works of art (see e.g. Frank Lloyd Wright) and a photo could be considered a derivative work.

Nope. A photograph of a building in a public space, where the photographer is also standing in a public space, is owned by the photographer.

This is a different right than what the building retains. I can take a picture of the Empire State Building. I own THAT picture and that picture alone. The Empire State Building retains ownership of its image; I can't take my picture and use it as a logo for my business.

Again, I can take a picture of Lindsay Lohan if she's walking down the street and sell that picture. I don't own Lindsay.
posted by Cool Papa Bell at 1:18 PM on May 11

A great resource for answering these sorts of questions is the ASMP legal resources pages, specifically the copyright tutorial. It's geared towards commercial photographers, but is pretty comprehensive.
posted by gyusan at 1:19 PM on May 11 [1 favorite]

To head off what people seem to be getting at here, no, I'm not talking about pictures of celebrities. Much more the glass of ice water sort of thing.
posted by y6y6y6 at 1:36 PM on May 11

Again, I can take a picture of Lindsay Lohan if she's walking down the street and sell that picture. I don't own Lindsay.

You couldn't use that image commercially without a model release.
posted by avex at 1:42 PM on May 11

You will own the copyright regardless of whether it was legal or illegal to take the photo. Whether you can legally sell the photo is another story. If there is nothing identifying the location of the photo then you can sell it for commercial purposes. To be on the safe side, you could get a release from the owner of the restaurant.
posted by JJ86 at 1:47 PM on May 11

You couldn't use that image commercially without a model release.

If by "commercially," you mean, I can't use the image for advertising, spokesmanship, a T-shirt, etc ... no, you could not, which is exactly what I'm saying. The model owns her face. This is the Rochester Folding Box Supreme Court case.

But in the aforementioned scenario -- model walking down the street, no expectation of a right to privacy, photographer also standing in a public place -- then the copyright of THAT photo is purely the photographer's, and he/she can reproduce it and sell it at will. This is exactly the kind of right that keeps the paparazzi in business. Why else are they hounding Britney? ;-)
posted by Cool Papa Bell at 2:02 PM on May 11

Cool Papa Bell posted: But in the aforementioned scenario -- model walking down the street, no expectation of a right to privacy, photographer also standing in a public place -- then the copyright of THAT photo is purely the photographer's, and he/she can reproduce it and sell it at will.

There is a distinction between journalism and advertising that I think you are missing. The paparazzi is a journalist in the loose sense of the word. He can sell that image for "news" purposes. If he sold that same picture to be used in a clothing ad, he would be sued out of existence.
posted by JJ86 at 2:08 PM on May 11

To head off what people seem to be getting at here, no, I'm not talking about pictures of celebrities.

It's an analogy to illustrate the same kinds of ownership. The restaurant has rights to its interior in the same way a rights to their personal image.
posted by Cool Papa Bell at 2:28 PM on May 11

If he sold that same picture to be used in a clothing ad, he would be sued out of existence.

That's exactly what I said right here when I first dropped into the thread. So I'm not the one missing anything.
posted by Cool Papa Bell at 2:30 PM on May 11

Ah, you should have kept that thought going. Your later post said something completely different.
posted by JJ86 at 2:38 PM on May 11

I have a vague memory of a case from a few years ago which dealt with this exact issue. I think it was the Getty Museum in CA, which claimed copyright over its buildings, and claimed ownership of all photos taken of its buildings. But I may have the wrong museum in mind, because googling doesn't turn up what I remember.

Doesn't Disney also claim copyright over its theme parks, and claim ownership of all pictures taken in its parks intended for commercial purposes?
posted by Chocolate Pickle at 2:39 PM on May 11

Does a property owner have a copyright claim simply because the image was taken on their property? If someone else has a legitimate copyright claim I can't just make money from the image willy-nilly.

Well sure you can. The problem here is that there is no International Registry of Copyright that you or the property owner can point to and say, "See, I'm right." The legitimacy of a copyright claim is decided by the courts. If you are making money from a photo that you do not have the copyright for and no one notices, you can make money as much money from it as you want. If someone notices all the money you are making and thinks they have a legitimate claim to copyright of the photo, they will take you to court. During that process your lawyers will argue with their lawyers over whose claim is better, and then the case will be decided. In the case of buildings, interiors, and people, the line dividing your mutual claims is fine, fuzzy, and always shifting.

Bottom line is, if you want to be really safe, get anyone who might have even a vague claim to copyright to sign something saying that they give up that claim. Even THAT may not perfectly protect you in court (signed releases are overturned all the time), but it won't hurt.
posted by Rock Steady at 2:45 PM on May 11

This was an interesting story I remember from a couple years ago regarding this. Apparently, downtown Silver Spring (just outside of DC) was banning photography in it's downtown sector due to the re-branding that had been going on.


posted by OuttaHere at 2:54 PM on May 11

Woops, here's the news link

http://www.nowpublic.com/photography_banned_downtown_silver_spring_maryland
posted by OuttaHere at 2:55 PM on May 11

"Doesn't Disney also claim copyright over its theme parks, and claim ownership of all pictures taken in its parks intended for commercial purposes?"

Here's one that is even more stupid -

http://ask.metafilter.com/88293/Hollywood-Sign-Trademarked

That agency is sending C&Ds to people displaying photos of the Hollywood sign onliner, claiming trademark infringement. Even if the photo was taken from a public street. Basically, by displaying this image you are representing yourself as having an official affiliation with the city of Hollywood, and thus deluting their trademark.
posted by y6y6y6 at 3:01 PM on May 11

This is one of those cases where the "Golden Rule" (he who has the gold makes the rules) often applies. In many copyright cases victory has nothing to do with the law; it only has to do with tenacity and financial stamina (i.e. how much money is available for lawyers).
posted by Chocolate Pickle at 3:10 PM on May 11

I was told that ALL of Tuscany is copyrighted and commercial use of any photos of quaint villas, farms, and stone walls requires a licensing fee. I don't know what jurisdiction that would be under, but that's what a local told me.
posted by StickyCarpet at 4:32 PM on May 11

This tree is trademarked, and you may not use any picture you take of it.
posted by StickyCarpet at 4:38 PM on May 11

I am not a lawyer. You should talk to a lawyer if you're really concerned about this. You don't want to be on the other side of some large property-holding company's lawyers.

I think people here are confusing copyright with right of publicity. As suggested above, the ASMP page is correct in stating: "In most cases, unless you specifically signed away your rights, you — the photographer — own the copyright and the right to license and re-license the image in any way you choose." That "license and re-license" bit is the important part here, and your ability to do so in this question is impacted by whether or not identifiable people or property are contained in the picture. Your copyright of the image is never in jeopardy, but your ability to freely sell your picture's use for a variety of purposes may be.

What the asker is concerned with would be covered under a property release (the analog for people is a model release). Releases are generally only needed for commercial use, as opposed to editorial use. Advice on this sort of subject tends to go along the lines of "better safe than sorry," i.e. best to get a release even if it isn't needed. I have seen arguments against that tack, though; by always getting a release for editorial use, publications might start to require all contributors to provide releases when in fact they aren't needed; this could put a chill on the freedom of the journalistic process....that's neither here nor there.

Unfortunately there isn't a lot of precedent as regards property releases, but that doesn't stop property owners from lawyering up and intimidating photographers. A couple recent cases that come to mind: the National Trust in the UK has allegedly asked a prominent stock photography portal to remove all images from its picture library that were taken on National Trust property unless the appropriate releases have been obtained; the Ford motor company allegedly threatened legal action against a small car club that was selling a calendar with pictures of the club members' cars (the matter was settled and Ford and cafepress allowed the club to publish and sell the calendar); the Eiffel Tower's lighting display was copyrighted in 2003, so photos of the tower at night cannot be published without the appropriate releases.

The general rule of thumb in non-editorial photography for property in a picture is that if the make and model are trademarked or can easily be identified in the picture, the picture cannot be sold. That is, if you've got Mickey Mouse or some other protected property in your photograph, you can't sell the picture for commercial purposes. A glass of water, however, would likely be fair game, unless the cup were extraordinarily special. Continuing with the restaurant idea, a picture of a generic looking burger would probably be fine to sell (the restaurant would have a difficult time proving in court that it was their particular burger in their particular restaurant) but a picture of a Wolfgang Puck Signature Heirloom Onion Burger McGillicutty Special would likely run into legal problems if you tried to sell the picture for advertising (that is, if the burger looked unique when compared to other burgers from other restaurants).

Another way of thinking about property releases is to think about a picture of Kleenex tissue. Is the object in your picture clearly identifiable as a Kleenex tissue or is it just a picture of a tissue. If it's obviously a Kleenex, you're in murky water. If it's just a picture of a tissue, you're probably fine. It's for this reason that most stock photography libraries have pictures of generic-looking cell phones and the like with all of the logos and other identifying marks photoshopped out.

I am not a lawyer. You should talk to a lawyer if you're really concerned about this. You don't want to be on the other side of some large property-holding company's lawyers.
posted by msbrauer at 5:11 PM on May 11 [1 favorite]

This tree is trademarked, and you may not use any picture you take of it.

Trademark and copyright are two different things. Assuming the trademark is legit, all that means is that you can't use an image of the tree in trade dress.

An analogy would be a Coca-Cola can. There's no reason you can't take a picture of a Coke can, put the picture on Flickr, include the picture in a book of photography, sell the picture, or license a magazine to publish the picture. However, if Coca-Cola feels that you're using the image to sell a product or imply a relationship between Coca-Cola and the product, they might very well send lawyers after you. I wouldn't, for instance, use the image for the cover of a book on soda pop unless I was lawyered up real good.

Now, trademark law can be fuzzy sometimes, and sometimes corporate lawyers overstep just because they can, but it's certainly not true that trademarking a tree means that you can't use an image of that tree under any circumstances.
posted by lore at 8:16 PM on May 11

The restaurant has rights to its interior in the same way a [model? has] rights to their personal image.

It does? Aren't a model's (assuming I've filled in that gap correctly) rights to his/her image based on the right of publicity? That right (in states which recognize it) usually cover things like name, likeness, voice. I'm not aware of this right protecting non-living entities. Or were you referring to something other than the right of publicity?

Obligatory disclaimer: I am not the OP's lawyer.
posted by Conrad Cornelius o'Donald o'Dell at 9:58 PM on May 11

This article by a lawyer seems to be on point if you are in a public space taking a photo of "Trademarked" buildings and specifically covers the Rock n Roll lawsuit delmoi mentioned in the first answer (not to ruin the ending but the photographer won). As Cool Papa Bell pointed out being on private property does change things and what rights you have to actually take the photo. If you have permission to take the photo though.... (IANAL, IANYL etc)
posted by cftarnas at 11:12 PM on May 11