Click to recommend this page:
This page contains material from my book,
Digital Photographer's Guide to Model Releases.
This 288 page, fully-illustrated volume is the most
comprehensive book available on the subject, covering everything you ever
wanted to know about model releases for photos people, places and things.
You may buy a copy here.
Most people who read this page for the first time are looking to find
whether they need a release for:
- A photo of a building or a work of art, like a statue or monument
- A photo that shows a product logo
- Being on someone's land (such as a farm, or inside someone's house)
- A photo of someone's land or property
If that's what you're wondering, understand that the need for a
"property release" is not triggered by the subject of the photo. It
depends entirely on how the photo is published. In other words, a
release is only necessary if the manner in which a photo is presented
implies an "association" between the photo subject (person or thing)
and the publisher. That is, the person or company that is responsible
for putting the image into public view.
That entire paragraph is the entirety of the discussion, but as you can
see by the length of this article, there's a lot of detail.
Let's begin with the basics: Photographers can take pictures of
anything they wantpeople, buildings, works of art, anythingwithout
requesting permission of anyone. Taking pictures is not the same as publishing
What's more, you can always sell pictures... of anything. Selling
pictures does not require permission (like a property release).
A release of any kind is only required if the photo makes it appear that
the subject of the photo advocates a particular point of view (supporting
a product, idea, ideology, relgious or political position). Simply put,
you can't publish an image in a way that makes a person appear that they
support something without their permission. If the photo would imply
that association, then the entity that publishes the photowhich
usually isn't the photographeris responsible for getting permission
from that person.
Just because a photographer takes a picture does not create
that association. And just because a photographer sells that
picture to someone else (such as the publisher) does not create that
association. The act of selling a photo is merely a financial
transactional, which doesn't imply "association" at all. More information
about this can be found in Model Release Primer.
Because there's no association, photographers often ask, "So, then why do
photographers need releases?" The answer is they don't.
Only the publishers need them, and those are rarely the photographers.
They only get those releases to make it easier to sell the photos to
Get it yet?
Perhaps not. But that's why you're here.
The root of all the misinformation about property releases stems from
a simple misunderstanding: They think that because people own property,
they therefore have a right to say whether photos of their property can
be published. And that's entirely false.
In fact, it may shock you to hear it, but there is no such thing as a
"property release." Let me be more precisemost conventional "property
releases" have no legallly binding basis in law. Yes, there are
ways to protect "property," but it's limited to "intellectual property,"
such as creative worksart, music, designs, or any other human-created
work, not based on science or nature. This is called "intellectual property,"
and that kind of property is protected by copyright and trademark
registration. Nature cannot be copyrighted, which means one cannot
copyright their land or their animals.
While buildings and other manmade objects can be copyrighted, it's not
that simple eitherthe copyright and trademark protections only apply if
the photo of the article could imply an association with the publisher.
In other words, publishing a photo of someone's building doesn't imply
anything by itself. That is, no one is going to assume the building is
owned by the photographer or the publisher of the book or website where
the photo appears. There would have to be text that makes this association.
For example, text would have to say, "This is my building design." Now
THAT would require permission from the designer, if it wasn't you.
And as you know, that never happens, which is why a bona fide property
release is rarely ever needed.
And that brings us full circle. So, the easy way to think of this stuff
is this simple process:
- Does the photo of the "thing" imply an association or advocacy of
whoever puts the photo into use?
- If not, a release isn't required. If so, is that "thing" protected by copyright and/or trademark?
- If not, a release isn't required. If so, is the nature of the copyright or trademark one in which
the test for "association" (step one) could harm or otherwise
misrepresent the owner of the "thing?"
If you can make it through each of those tests all the way to the last
one, you've got a rare set of circumstances. And, as I'll discuss later,
if these tests ultimately trigger the need for a release, it will almost be
guaranteed that you are not going to get that release; the licensee
(user, publisher) of the photo will. This is for the sole reason that
if the release was even needed at all, the owner of the trademark will
likely demand a direct relationship with whoever's going to use the
photo, and also charge lots of money for it. Ironically, an easy test to
determine if a release is necessary is to simply ask for one from the
property owner. If they sign one, it's almost assured that one isn't
necessary at all.
Another way to look at it is this: Money's role in this is a direct
relationship to the value of the property as a recognizable commodity.
If someone is willing to sign a property release without any (or a small
sum) of money, then the release would not be required anyway, because the
only reason for a release is to protect and enhance the monetary value of
the property. If it has no value, no release is required because there's
no inherent value of the property to protect. If it has value and if
the use of a photo of it would imply an association with the publisher,
then the value of the property release would be highconsiderably higher
than what an individual photographer would pay.
Everything stated above is basically all you need to know. However, upon
first reading, most people are just scratching their heads. But, I assure
you that once you finally "get it", you'll be able to reread that entire
introduction and it'll make sense.
Let's start with a simple example that illustrates a common scenario.
As we all know, a sculpture is a work of art whose copyright is owned
by the artist. A photo of that sculpture cannot be used in a brochure
in a manner that promotes a life insurance company unless the artist
grants permission. Easy enough to understand, because that statue is
a copyrighted work.
But let's say that the gallery that sells the statue uses that photo
to promote the artist. Some might argue that the artist's work being
featured in an ad would help sell his work, so why would a release
be required? Well, a poorly shot photo (composition, light, exposure)
could potentially harm sales. Because the artist owns the copyright,
it's up to him (no one else) to decide whether the photo in question
can be used for this promotional purpose. So the gallery can't use
just any picture it wantsit has to use the photo that the artist
grants permission to use. (Because of that, many galleries have
contracts with artists that require the artist to grant permission
to the gallery to use any photo the gallery wants, specifically to
avoid this possible conflict.)
By contrast, a newspaper article (or blog entry) that comments on the
work does not need a release to accompany the photo because the use of
image is for editorial purposes. This is defined by the "fair use"
provisions of Copyright Law.
These two examples are very common and simple cases, but one that quickly
and simply summarizes the basic principles involved here. Perhaps one might
have guessed the newspaper example easily, but perhaps not the gallery
example, especially since the artist already has an existing business
relationship with the gallery. These kinds of scenarios are often
overlooked because such relationships rarely have conflict over the use
of an image. That is, an artist wouldn't object to a gallery using
an image of his work for the originally speculated reason that it's
generally in the best interests of the artist to have the photo used.
It's also highly unlikely that a "bad" photo would be used, because it's
in no one's best interests to do that. Furthermore, it's often the case
that the artist is the one who has photos of his own work shot, and he
provides them to the gallery for exactly these uses. So, no one ever
thinks to ask whether a release is required, nor do people actually get
releases for cases like this.
In fact, virtually all such uses of copyrighted items are similar
in that the use in question doesn't actually harm anyone, and because
there's no conflict, it doesn't actually matter. And it is for all
these reasons that the "de facto" behaviors are assumed to be what
is legally permissible, feeding the gross misperception of what is
really involved in copyright law regarding photography.
Just because people's understandings are wrong doesn't necessarily
mean bad things will happen. Business is all about relationships,
and, as most lawyers will tell you, relationships have a tendency to
break down when disagreements arise. And when that happens, it's best
to have your agreement in writing.
On the other hand, it's not always easy to anticipate future disputes
and document conditions in an agreement. By the time the dispute comes
up, if the written agreement doesn't anticipate those conditions, now
it's an argument up for a judge or arbitrator to decide, and the winner
goes to the side that knows how to argue better. Note, I did not say
to the "correct" side. Suffice to say that if there's a dispute, it's
most likely not that black and white for a third party to easily point
to a winner. Both sides have to present their case, and it's usually
the case that the side with the best lawyer wins, and that's usually
the more financially capable side.
The pros and cons of having a legal agreement ahead of time are
best weighed by the economic value of the business relationship.
It's often better to not muddy the waters on a simple relationship
involving a simple transaction that doesn't involve that much money.
All too many times have I seen photographers get so wrapped up in
the mechanics and details of such trying to be legally "tidy"
that they actually harm the relationship or themselves, sometimes
even preventing the transaction itself.
"Don't spend a dollar to save ten cents."
If I had to summarize licensing photos of copyrighted and trademarked
works, it would be to understand how an item is used in publicity
and the economic ramifications of such use. Even more briefly, who
is making or losing money (or opportunity) as a result of the use of
the photo? Answering that is not done by looking up legal statutes on
the books. It involves considering both sides of an argument, which
often results in back-and-forth arguments, "on one hand," and then,
"on the other hand." This is what prompted President Harry Truman
to once proclaim after a grueling lecture the US economy, "I wish
I could find an economist with only one hand."
In that spirit, we're going to be looking at a lot of hands in this
Because of the nature of photography and the business of photographing
other works of art, most people become confused from the entanglement
of the photo itself and its contents. These two are entirely
separate animals; the photographer owns the copyright to the photo,
regardless of the subject of the photo. So, while you (as the photographer)
may have the right to license the photo to someone (because it is yours),
the use of that photo may be restricted because the subject (the statue)
is copyrighted by someone else. This is very similar to that of photos of
people. If this concept is new to you, read Model Release Primer.
The same also goes in reverse: the artist that created the sculpture
may permit the use of the photo, but he himself does not have the
right to the photo itself (or to use it himself). This, because the
photographer owns the copyright to it. If you're confused here, it's
because there are two works of art involved: a photo, and a sculpture.
The copyright for each is owned by the respective artist, irrespective
of he fact that the photo contains of photo of the sculpture.
Ok, at this point, I'd be talking in circles if I were to continue, so
let's move on. This will al become clearer as I illustrate more examples.
Copyright and Trademark Overview
What can be copyrighted or trademarked? Just about anything. A
building. A bridge. A drawing. A poem. A design. An article of
clothing. An "identity" (like a superhero). If it's a physical thing
that took a human mind to conjure up, it can be copyrighted and, in
some cases, trademarked (as we'll discuss soon). As you can imagine,
that can be inclusive of just about anything you see. For example, a
common everyday photo of laundry hanging from a clothesline. Clothes
are designed by people, so those designs are copyrighted. Similarly,
photos of cities include buildings, and those buildings are also designed
by people. So again, those designs are copyrighted.
So, if all these things are copyrighted works, how can photos of them
be sold without objection by the copyright owners? If you're like most
people, you'll probably guess that it's because few of the items in the
photo are clearly identifiable, similar to how the people in this photo
Good guess, but unlike with people, identifiability is not really
the primary trigger for a release in this case. (It's important,
yes, but stay with me here.) Rather, it is the implied association between
the copyrighted item and the manner in which it is used that matters most.
The reason the photo of the sculpture requires a release by the gallery
is because there is a very close association between the two: the gallery
and the artist rely on one another to do business, and hence, the photo
of the sculpture directly affects the gallery's ability to do business.
Photos of clothing that people happen to be wearingor buildings in
a cityscapedon't imply or infer a similarly direct relationship
between the copyright holders and the entity that puts the photo into
use. (Note once again that the photographer himself has nothing to do
with any of this.)
So, the thing to anchor in your mind is that implied association. But
now I want to ratchet it one step further: while there could be
some arguments made between opposing parties on whether there's an
association for a given photo of a copyrighted or trademarked item,
courts like to see just a tad more relevance, and that comes by measuring
whether there is a "material economic impact", positive or negative,
among the parties. In the practical world, almost no photos you see
in everyday situations require releases because this is a high hurdle
to clear, even though the "objects" themselves are clearly identifiable
(and presumably copyrighted). We'll get into more examples of this soon.
Simple Definitions of Copyrights and Trademarks
Some quick definition: A copyright springs into existence the moment
a work is created. Copyright law specifically states, that the work
must exist "in a fixed and tangible medium for at least some period of
time, no matter how brief." For photography, the work is instantly
copyrighted by the photographer when the shutter is released. For an
author, it's when he writes his book. For a choreographer, it's the
moment he designs a dance step. For a sculptor, it's when he chisels.
For an architect, it's when he drafts his designs. For a drunk sitting at
a bar scribbling prophetic love notes on a napkin, it's when the pencil
(presumably) hits the fabric. Anything that involves an "original"
creative process is automatically copyrighted when the creator makes
it. (Registering a copyright is an entirely different matter, but a very
important one, as discussed at the end.)
A trademark springs into existence whenever "it" is used in commerce
as a "distinct indicator of a single source of origin or sponsorship,"
as defined by trademark law. It's beyond a photograph; it's a conceptual
element whose representation is identified by the design. It can even
be a sound. (Think of the Intel "tune" that's played on TV commercials
that sell PCs.)
Sounds complicated? Consider the most well-known examples: the
Coca Cola logo, the Nike swoosh, or the CNN icon on TV. Each of
these are clear identifiers of an origin. Because they are instantly
recognized by most people, they carry a great deal of "good will"
because the value that products or services receive by being
associated with the trademarked item is high. For example, if Nike
comes out with a new shoe that dons the company's "swoosh" logo,
the general public will probably accept it with less scrutiny (and
thus, buy it), simply because of the logo. By contrast, if the exact same
shoe came from a generic (unknown) manufacturer, it could sit on the
shelf for quite a while without being purchased. In fact, many stores
wouldn't even put on the shelf in the first place because of its lack
of "goodwill". If Coca Cola comes out with a new drink, and the bottle
or can has the Coca Cola logo, chances are higher that stores will carry
it and that people will buy it, even before knowing anything about it.
Hence, the mere existence of the logo on a product can have enormous
economic value if the logo is well known and popular.
Now we can differentiate between Trademark and Copyright: the design of
the shoe is copyrighted; the use of the logo is trademarked. The
copyright prevents someone from copying the shoe's design, and the
trademark prevents others from using the logo to promote their own
products (or to suggest an affiliation with the real mark's owner).
Not the Facts, Ma'am
Only creative ideas can be copyrighted. Facts cannot. While the text
you are reading here is copyrighted by me because I am expressing them
in a unique way, the "facts" that I'm talking about are not subject to
copyright. Same with math formulas, scientific findings and events
in history. It may surprise some people that "religious views" can
be copyrighted because they are (yes) creative ideas, thought up by
people. Courts continue to re-establish this precedent, as evidenced by
the copious use of litigation by the Church of Scientology, who
have ardently argued their teachings are copyrighted materials.
Case studies can be found here:
As a photographer, you're already a little familiar with copyright,
because your own photographs are copyrighted by you, which means
your financial interests are protected from other people using your
photos without your permission. (You grant them permission to use
them through a license agreement.) It's the use of your actual
image (or a portion of it) that requires permission, not the
contents of the image, or even the idea behind it. Even if you are
very well-known for a particular image, if someone else took a photo
of the same thing, they own the copyright to their image and can
license it without compensating you. Even if the photos were shot
precisely at the same time, in such close proximity to you, that
the photos appear otherwise identical, they can license their version
of the image to someone, and you don't receive a license fee. This
sort of thing is very common at sporting events, political rallies,
or at well-known national landmarks where photographers congregate in
close proximity to shoot the same subjects. In summary, only the
specific photo you took is copyrighted by you.
Trademark with less value?
The astute reader may wish to see
about The Fourth Circuit Court of Appeals upholding a decision
involving Baltimore Ravens use of the team's logo. The court found
that, even though they infringed the copyrighted logo designed by
Frederick Bouchat, a security guard who designed the original logo
in 1996, it didn't have to pay Bouchat anything for the infringement.
The court concluded that purchasers of Ravens t-shirts, caps, and
other merchandise would buy whatever official team merchandise was
offered, irrespective of the logo design. While the reason he didn't
get any money is because he opted to sue for a share of their
profits from the logo (as opposed to the statutory damages), the
larger point is that a trademark is typically used to protect
something that has value.
While the photo enjoys the protections of copyright, you don't
trademark a photo. The purpose of a trademark is to protect a design
element that you use to represent yourself, such as a logo (which
you use regularly on your stationary, envelopes, website, and so
on). While you can technically use a photo as (or in) your logo,
the trademark is really there to protect the association with you.
Anyone can use your logo without permission, so long as the use isn't
done to represent themselves (stealing the logo), or is not used to
imply an association with you (or the good will of your name), or to
damage your reputation by misrepresentation. That is, by showing a
really bad photo and using your logo on it to fool people into thinking
it's your photo. This is distinct from damaging your reputation by
simply criticizing your workthat's free speech, and people can
use anyone's copyrighted work, or trademarked logo to do that. In fact,
you see it all the time in magazine and newspaper news articles and
art reviews. We'll get into the details of this later.
Trademarks and Photography
As discussed above, a trademark implies an association between the
user of the photo (publisher, advertiser, etc.) and the owner of
the mark. If so, there also has to be a value connected with
Consider the photo shown here of a woman standing next to a mural with
the Coca Cola logo in it. Would a reasonable person assume that Coca
Cola is somehow affiliated or associated with anything written here?
To do so would be a difficult argument, since there is no discussion
of the company, the product, their industry, or anything about them.
Also, no one is purchasing anything because of the "good will"
engendered from the Coca Cola logo. The issue isn't whether Coke's
logo has "good will"clearly, it doesrather, the question is only
whether there's an association with the company, or if the good will
can be shown to have been influential in a purchasing decision in the
It is for these reasons that you see photos with the Coca Cola logo
in many placestextbooks, newspapers, here, and even catalogsand
yet, no release is necessary. That isn't to imply that a release
is never necessary; there are violations all the time. The point
is that a release is not necessary if the use does not meet certain
criteria, and that the financial impact is high enough to warrant
pursuing through the courts.
If you have a photo that happens to include the Coca Cola logo, (or any
trademarked item), the question as to whether a release is required has
nothing to do with your having the image, nor your ability to license
the image; but rather, how the person who buys the image puts it into
use. If that use implies an association, or relies upon the good will
of the logo, then a release may be required or desired. But that decision
is made by the licensee, not the photographer.
Now, as a business person, you want to optimize your ability to
license whatever images you have. And, as discussed in the chapter on
model releases, you can increase your potential
revenue for licensing a photo into the commercial market if you have
a release ahead of time, thereby making it easier for the licensee.
After all if they're protected ahead of time, and it's easier for them,
the quicker the sale to you, right?
Nice idea, but there are three problems. First, asking a well-known
company to sign a general release for a photo of their logo (without
a specific use in mind) in anticipation of some as-yet unknown
license, would be like asking a well-known celebrity to sign an
open-ended model releasethey're just not going to do it. Second, the
opportunities to license such photos for these kinds of commercial
uses are so exceedingly rare, that it doesn't really make business
sense to spend the time and energy trying to get pre-signed releases
of copyrighted or trademarked items. And third, anyone that actually
would require a release for using a photo that happens to contain
a logo is going to go directly to the source and get their own permit
anyway. Their lawyers won't want to depend on trusting an unknown
third-party, such as you, for a model release. the liability is too high.
Why no Sample Release Template?
All this explains why don't I include samples of releases for
copyrighted or trademarked items, like property releases. Those
that are actually used in the real world are very specific about
the use, are long and detailed in legalese, and are often the result
of both parties' lawyers having gone back and forth many times.
That's not to say that boiler-plate property releases don't exist.
They do, and a search on the net yields many results. Yet, the
catch-22 is that almost all the conditions under which these so-called
releases would be used are simplistic cases that wouldn't require
releases anyway. If a release were necessary, these template
agreements would be far from useful. And again, because photographers
aren't the ones that need these kinds of releases, their usefulness
is next to nil. Such releases are needed by whoever puts the image
into use, so let their lawyers take care of it.
In short, almost all property releases are merely placebos.
This presents one last dilemma for which I have no great advice:
what do you do about people who think they need a release for a
photo, but actually don't? This reminds me of the Monty Python skit
where a man goes to a government office and asks to buy a license
for his pet fish, Eric. The clerk tries in vain to tell the man
that he doesn't need a license for a pet fish. The man insists that
a fish license is required, and proves it by producing his official
'cat' license. The clerk reads it and responds, "that's a dog
license with the word 'dog' crossed out and the word 'cat' written
in in crayon."
In cases where you're dealing with clients that don't know what they're
talking about, you're left to your own ingenuity on how to handle it.
The worst thing you can do is attempt to pacify the client by producing
a phony license, only because this would constitute fraud. And the
second worst thing you can do is actually attempt to get a release
(especially using one of those boiler-plate forms found in books or on
the internet) from a trademark or copyright holder to permit the
photo to be used in a manner that doesn't require it. This would paramount
to opening Pandora's Box, involving lawyers, time, potential (and
unnecessary) fees, and of course, paperwork. (Of course, you could
just tell your client to buy my book and
have him read this chapter!)
Scope of Trademark Protections
The key theme to everything discussed above is "commercial uses,"
which are actually less common as a ratio of all photos licensed
than people think for photos of such items. Given this, you might
already be feeling safe. Now, I'd like to actually lull you into a
deeper slumber of complacency with this:
There was a case in Ohio involving a photographer who sold posters
of a photo he took of the Rock and Roll Hall of Fame in Cleveland.
(Note: this is one of those rare cases where a photographer also
happens to be the publisherhe's putting his own photo "into use.")
The building's design is rather unique, and the owners of the museum
had it trademarked. So, they sued the photographer for infringement,
and they won. Yet, a federal court of appeals reversed the decision,
and permitted the use and sale of the photographer's posters. From
the court transcripts, the judges in the majority opinion wrote:
"In reviewing the Museum's disparate uses of several different perspectives
of its building design, we cannot conclude that they create a consistent
and distinct commercial impression as an indicator of a single source
of origin or sponsorship."
So, now that you've been lulled into complacency, here's the reality jolt:
the court ruling was a 5-4 decision, a razor-thin margin that should not
be relied upon as a sweeping precedent. The opinions of the dissenting
judges were more along the lines that most people expected: that
the sales of the posters were benefiting from the "good will" of
the existing landmark, which is supposed to be protected by trademark.
It just so happened that the trademark owners were just a little
too "loose" with how they represented their mark, which caused the
court to tilt in this particular ruling. As a result, photo discussion
groups on the internet were abuzz with statements from photographers
about selling photos of other famously trademarked buildings. But,
this is a naive business decision, as circumstances could have
easily gone the other way.
The case is
Rock and Roll Hall of Fame v. Gentile
134 F.3d 749 (6th Cir. 1998),
and makes for interesting reading for a variety of reasons that the truly
dedicated reader may enjoy delving into.
Sun Microsystems Logo
Columbia Sportswear Logo
Another example that illustrates the limitations of trademark
protection, look at the logos associated with these two companies,
Sun Microsystems and Columbia Sportswear. The use of the diamond-shaped
logos appear to be almost identical. Yet, because they are in two
entirely separate industriesone makes computers, the other
sportswearthere is no confusion among buyers, and the "good will"
of one company does not affect the perception of the other.
Granted, the actual details of such "trademark clashes" get more involved
than this, but the point is that courts regard trademark infringement
with a keen eye on precedent (how long a mark has been in use), intent
by both parties, and by the public's perception of identity. They want to
leave well enough alone if they can.
As Robert Mionske reports: Sometimes a mark becomes so associated
with the product or service that the mark losses its protection.
Examples of companies being too successful include Aspirin, Kleenex,
and Escalator. These were all originally distinctive marks that
lost their trademark protection by becoming generic.
(Legally speaking with Bob Mionske - Protecting your brand)
A mark can even lose its protections if it enters into the public
domain due to common use in the vernacular. For example, "google"
is having a hard time keeping the word "google" from becoming a
generic synonym for "search," since it's becoming common for people
to say "you can google it" when they mean to search for it on the
internet. Such uses dilute the company's ability to protect the
mark in some contexts, since "common vernacular" implies the loss
of "the distinct commercial impression as an indicator of a single
source of origin or sponsorship."
Another byproduct of "scope of use" is that one can't register a
mark (and benefit from protections) unless it is used in commerce.
Here, "commerce" is not the same as "commercial use." It just means
that the mark has to be used in the normal course of business.
Even companies that engage in non-profit or editorial businesses
are considered to be using their logos in "commerce" because they
buy and sell things, they pay people, and they have an identity.
Simply put: if you touch money, you're engaged in commerce.
As a professional photographer, do you need to analyze the intended
use of the photo by a licensee to determine whether a release is
necessary? Do you risk legal action if you were to license the photo
and it turned out that the end-user did require getting permission?
If you don't know the answer to this, review Model Release Primer.
Why is this important? First, a mark has no protection if it's not
used. If someone brings a claim against someone for using their
trademark, but they never actually put it into use, they have a big
steep uphill battle to fight. For, not only do they have to prove
that it was in use, but there is "value" in the mark. While there
is a nominal statutory fine for violating a trademark that has no
value, this is hardly worth paying the court fees to pursue. For
there to be substantial monetary recovery, the mark has to have
generated good will. If the mark is unused, it is unknown to the
public, so it has no value.
Again, how does this relate to you, a photographer? Because among
the most commonly misunderstood aspects of licensing photos is that
of licensing photos of buildings. That is, the enigmatic "property
release." So, let's get into that next.
Photos of Copyrighted Items
Most photographers (and licensees) think property releases are
required for publishing photos of buildings because of a slight
misunderstanding of a key aspect of copyright and trademark law:
the mistaken assumption that what applies to photos of people,
applies to copyrighted or trademarked works, like buildings.
The source of this misunderstanding is the copyright: buildings are
made from architectural designs, and such designs are copyrighted
by definition, exactly the same way photos are. Also like photos,
architectural drawings don't have to necessarily be registered to
be protected. So, technically, items such as buildings are protected
by copyright protection, as any other item would be. The part that's
misunderstood, is that "any" use of a photo of a copyrighted item
does not itself constitute a violation of that copyright.
The protections that copyrights provide usually come down to some
economic measurement: is the display of a photo somehow having an
economic effect on the copyright owner's ability to sell his product?
Does it diminish its value? Similarly, is the use of the photo
somehow enabling the user to benefit economically? That is, just
as the "good will" of a well-recognized logo may help with the
perceived value of a product that bears it, a "good design" (regardless
of whether it's recognized) can have a positive economic effect on
the user's ability to sell his wares. The question of whether any
given use violates a copyright is judged on how closely one can
attribute the use of the photo of the item in question with any of
the hypothetical effects listed above.
Think of the example I used earlier of the photo of laundry hanging from
clothes lines. Let's say a travel agency wanted to license this
photo for use in an ad for travel to Venice. Yes, clothes are
copyrighted by their designers, but there's nothing unique about
the specific designs of these particular clothing items themselves
that aided in someone's desire to travel to Venice. Nor could one
argue that the photo is harming the sale of these particular clothes
manufacturers. In fact, even if the ad were used by makers of a laundry
detergent, it wouldn't matter. In fact, the ad could be for another
clothing manufacturer, and it still wouldn't matter, because there's
simply not enough connection made between the articles themselves and
their copyright holders. Thus, if such a photo were used in any
adregardless of its natureno release would be necessary from
whoever owns the copyright to those designs.
By contrast, consider the photo shown here: a dress and a scarf
(that looks like a rather unique-looking necklace). Obviously, the
attractive nature of the scarf (not to mention its uniqueness) would
have considerable value in some contexts. If a store were to sell
these items, and wished to place an ad in a magazine using this
photo, then we have a similar case discussed at the beginning of
this chapter involving the statue. The "technicality" of the release
is there, but in a real-world scenario, it's unlikely one would be
obtained because of the local nature of the promotion and the
symbiotic relationship between the parties involved.
Broadening the scope wider, consider a travel agency that wanted
to license the same image to use in an ad for trips to Dubrovnik,
Croatia (where the photo was taken). This is a much broader distribution
of publicity, and the target audience (luxury travelers) may be more
interested in the destination because of a perception of fashion sense.
Is that a kind of use that would require a release for these
copyrighted items? What's your call?
Enter the multi-handed economist (or lawyer). On one hand, it could
be argued that the jewelry and clothing in this photo have nothing
to do with travel, and that the cross-over between those who read
a travel magazine and those shopping for attire are insufficient
to cause harm to the clothier's sales. Nor would it be easy to
demonstrate that travel to Croatia benefited directly from the use
of this photo. On the other hand, we don't really know a whole lot
about the items in the photo, and whether they are representative
products from that region. If the scarf was really a jewel-encrusted
elaborate necklace made by a well-known designer, like David Yurman,
then chances are someone's going to get a call from a lawyer. On
still yet another hand, for all we know, the scarf was made in
Slovenia, and the jeweler was Slovenian, and he happened to have
just moved there. (Why not? I've seen Chinese Restaurants in every
country I've ever traveled to.) There are so many things we don't
know, that the pendulum could swing in all directions.
To compare and contrast examples, consider a hypothetical case where
the following photo was to be used in an ad for the Santa Cruz Beach
Boardwalk theme park. Here, the ad has nothing to do with clothing
in any way, and the use of the image doesn't interfere with the
sales of the product (in ways covered by copyright). The ad does
not present opportunity for the design to be stolen, nor is the
design unique enough that one could point to its inherent qualities
as being a particular attraction. So, it'd be hard to argue that
the copyrights of the design is violated.
As for the protections offered by trademarks, the association with
tourism here is not one that implies "sponsorship" by the makers of
the jeans. Even if they were Levi's brand, one cannot see it from
this photo itself, so there's no association. (Here's a case where
identifiability is important.) If there were a clearly identifying
feature that would cause a reasonable person to draw such an association,
then a release may be required, but it's not yet definitive. Why?
Because Levi's has become a very common, almost "generic" American
look; a photo of someone wearing such pants is so common, that it is
not necessarily itself a form of sponsorship. How large would the
Levi's logo have to be to suddenly trigger a perception of co-branding,
or that one could attribute the theme park as exploiting the good
will of the brand to attract visitors?
There is no answer, and even assessing the "risk" itself is
unscientific. Because of this unknown, the one who chooses to
assume the risk is the licensee of the photo. They alone assume all
the risk, further underscoring why no one except for the licensee
needs to worry about it. For if it were otherwise, then photographers
would be bearing the responsibility for all photos published, and
publishers wouldn't care at all.
This should help make the discussion on the use of photos of buildings
much easier, if not obvious, at this point. The mere portrayal of
a photo of a building in an ad or other commercial publication is
insufficient to say a release is required. It's the context for
how the property is displayed that matters, and the associations
implied, and their potential economic effects. Copyrights cover the
physical object itself from being copied, its design from being
stolen to make duplicates, and from others exploiting its uniqueness
for financial gain. For a violation to occur, the owner would have
to convince a judge of these facts.
And this brings us right back to where it started: the copyrights
for a building have its limitations, but then, so do trademarks.
For them to have value, the mark's "good will" and the "perception
of association" must be shown. Most buildings are either not
trademarked, or even if they are, have minimal "good will" value.
Of those that do have value, the use of the photo has to suggest
an association with the mark, or impugn upon its value in some way
that isn't protected by free speech. The general rule of thumb is
that the cases where a property release is required are so minimal,
you can consider it more the exception than the rule. What's more,
those exceptions will be pretty obvious when they do occur.
Navigating the US Trademark and Copyright Websites
Let's consider the use of a photo of a building in an ad promoting
tourism to a particular city. Is this a commercial use of a photo?
Is "commercial use" sufficient? What's the association? Is the
city implying an association to the building (or with its owners)
so as to attract tourists? Does the use in question harm the good
will of the mark by diluting its perceived value? Remember to avoid
mixing your notions of trademarks and copyrights.
To answer that question, we need to take a side step and discern a
little more carefully where trademark and copyrights differ. Since
this confusion comes up so much, let's see if an example exists
where there's a building that's both copyrighted and trademarked,
and understand the ramifications of each as it applies to our
Start by going to the website for the US Patent and Trademark
office (http://www.uspto.gov/), and click on the link for trademark
searches. Of the various types of searches listed, start by using the
basic search. Type "Golden Gate Bridge." You may be given many marks,
some owned by the bridge, and others not. Some trademarks are "live"
and others are "dead" (like the mark for the "Golden Gate Bridge Beer",
which actually sounds intriguing). One can play for a long time on this
page, looking for marks such as your name or funny words or places
that you know. But, don't spend a lot of time doing this; you have a
photo business to run.
Turns out, the Golden Gate Bridge is trademarked, but the use of
the mark is so copiously visible in all manner of media, that the
risk of violating the mark through the proposed use (advertising
tourism to San Francisco) is nil. (Again, see the point made about
"generic use.") This doesn't mean that the mark has lost its protection,
it just means that the scope in which the bridge chooses to enforce
its protections is limited (and that limitation does not include the
hypothetical use posed above). It also helps that the owner of the
trademark is a government institution, and their main goal is to
prevent misrepresentations of the mark, or other dilutive effects
of the mark's good will. As such, you rarely see scary or harmful
images of the bridge, such as it blowing up in movies. You also
don't see other products and services not related to the bridge.
But, you will see many uses of the mark on advertising materials
promoting tourism in San Francisco. So, the city of San Francisco
(or anyone, for that matter) can use photos of the bridge to their
A different example is The Transamerica Building, also in San Francisco.
What's different is that, unlike the Golden Gate Bridge, the Transamerica
building is owned by a company, not a government institution, so their
objectives are different.
Here, the building's owners hold both a copyright and a trademark
registration. In the case of the copyright, no similar buildings
could be erected based on that design (at least, not without
permission). As for the trademark, the design of the building is
also represented as a "logo" with a similar shape, and it is used
to represent the company and its various business units.
To reiterate, the trademarked logo is a "symbol identifying the
source of a commercial product." So, you can't have a beer named
Transamerica Beer that uses the logo (whether a photo or a simple
drawing). Such use would cause a reasonable person to assume that
the company was somehow affiliated with it, or that they might buy
the beer because of the "good will" associated by the company's logo.
(The "name" of the beer has nothing to do with the intended use of
the logo. It could be called "Joe's Beer" and still not use the
On the other hand, I can freely use the Transamerica logo in this
text to discuss the topic because I am not using it as a source of
"good will," exactly as discussed in the case of Coca Cola. Whether
I (or the publisher) "make money" from this text is irrelevant, and
whether you read it for free on the web, or pay for a book with
this text are also irrelevant. It's only how the mark is represented
in the work that matters.
Summary of Commercial Uses
At this point, let's sum up what we've covered so far:
- You're not going to get into trouble just because you took
a photo of a building, logo, or other trademarked or copyrighted
work. Just as with taking pictures of people, it's not the photo
that matters, it's how the photo is used.
- The act of licensing an image is not "commercial use."
It's how the image is (or would be) put into use by the licensee
that defines whether a release would be necessary.
- If you're licensing photos for other people to use, you
aren't the one that needs to determine whether the ultimate use
could potentially violate a copyright or trademark. The licensee
Got all that? Good. We just covered the hard stuff. Hard, because
commercial uses of photos of trademarked and copyrighted things
can be complex, not because you are really at any higher risk (nor
are your clients who license photos). The reality is that commercial
uses of photos of trademarked items are rare, and almost always
handled separately by those who license them.
Now that we've covered commercial uses, let's get to the fun and easy
stuff: editorial uses of copyrighted and trademarked items. One
of the key foundations for why editorial uses of trademarked items
and copyrighted works do not require releases is described by a
principle known as fair use. Here is an excellent excerpt from
Stanford University's website on copyright and fair use:
Fair use is a copyright principle based on the belief that the public
is entitled to freely use portions of copyrighted materials for purposes
of commentary and criticism. For example, if you wish to criticize a
novelist, you should have the freedom to quote a portion of the novelist's
work without asking permission. Absent this freedom, copyright owners
could stifle any negative comments about their work.
This is particularly important in this day and age with copious use of
blogs and other resources on the internet where individuals express
themselves. The law provides protections to publishers for these
very uses, and the text you're reading here is a primary example.
Another example of Fair Use can be found a term called, Found Art.
This refers to the use of an object that, because of its very nature,
evokes social commentary. Here, a copyrighted or trademarked item can
be displayed (and sold) as artwork, overriding its usual protections.
The most common example of this in today's society is "mash-ups." We see
this on websites where people combine various parts of other people's
photos to create new ones. This is perfectly legal under "fair use" and
no releases or permissions are necessary, irrespective of the copyright
status of the work, or the wishes of the artist.
An example that includes a trademark might be the use of a photo of
an old "Sambo's Restaurant." Up till 1978, Sambo's was a chain of
pancake restaurants based on the famous story of an encounter between
a little black boy named Sambo and the tigers. The restaurant was
forced to close its doors on due to the then-derogatory use of the
name "Sambo" referring to black people. At the time, it was a heated
and highly emotional battle. Using imagery of the restaurant today
for the purpose of depicting how social change has taken place within
society may be regarded as an example of "found art." It will still,
no doubt, evoke strong emotions among viewers, especially those who
"don't get it." This, ironically, is part of the purpose of artwork: to
evoke such discourse. This artistic use of trademarked material without
prior permission from the owner is protected under the First Amendment.
As for "artistic photos" of trademarked items, there's the case of
Mattel, Inc. et al. v. Walking Mt. Productions, which you can read about
Mattel sued an artist and his company for copyright and trademark
infringement based on the artist's use of BARBIE dolls in a series of
photographs depicting them in various unflattering poses, and use of the
BARBIE mark in connection with the photo series. The court found that
the photos are permitted under "fair use" professions, which precludes
Plaintiff's trade claims. Furthermore, the artist may sell postcards
featuring the same photos displayed in the exhibit, since an artist
is permitted to sell his own artwork in other formats. In the court's
opinion, the average person would not necessarily assume that the
Mattel company was an advocate or sponsor for the photos depicted.
Satire is another form of editorial use that falls under the Fair Use
principle. Usually, people associate satire with humor, where someone
makes fun of something else, usually at the target's expense. TV Shows
like Saturday Night Live satirize celebrities and political figures
all the time, but they also poke fun at other TV shows, and specific
products, using their names, logos and everything. These are all
well-known and protected forms of expression under the First
Amendment, so the use of photos in these contexts are protected.
If a TV station wants to license your photo of a celebrity (or the
TransAmerica building) for use in a satirical piece, they can do so
without a release.
This then raises the question of whether the piece is satire. As you
probably know, what may seem funny to you and me is often not funny to
the target of the humor. If a statement sounds like an accusation of
a serious nature, but the intent was satire, there could a court battle
to determine which was the case.
To quickly test if you've been paying attention: let's say the
TV show was found liable for making defamatory statements about
the celebrity (or trademarked item), how does that affect you?
Are you somehow wrapped up in this because you're the one that
licensed the photo to the TV show? For answers, see
Model Release Primer.
One twist on satire is the extent of which it extends into commercial
ventures. In other words, to what extent is the trademark being
capitalized upon to leverage the sales of a new product? If someone were
to make a t-shirt the satirized a particular and well-known American
hamburger restaurant chain, this is clearly satire, and is protected.
However, if one were to mass-produce the shirts, could it be considered a
violation of the mark? You should be able to answer this one too,
as pointed out before: the act of making money has no bearing on whether
a mark has been violated.
The pragmatic reality of the world is that the law doesn't necessarily
govern what really happens. I remind the reader that anything still
can provoke the swift and full attention of plaintiffs and their lawyers,
who may choose to file a suit, even if they are wrong. Some people are
so overly aggressive in protecting their trademarks because they
don't even want people to think poorly about them and stain their
reputation. It is often the case that unwarranted trademark violation
suits are filed for the sole purpose of stifling undesirable statements
about a company or its products. So, don't necessarily believe that
if a company takes some form of legal action, or sends intimidating
letters, that they are "right." More often than not, they are just
For example, an article in the New York Times on August 2, 2007 titled,
Content Makers Are Accused of Exaggerating Copyright,
companies from all around the media dial were accused of misleading and
threatening consumers with overstated copyright warnings. The article
cited one example, "photocopying a page from a book to use in class,"
which is perfectly legal, as are many other uses, including making copies
of all matter of content for personal use.
The Hearst Castle Experience
An interesting case that happened me involved the Hearst Castle (California),
and a very high-profile magazine. I was contacted by a photo editor at
the magazine to license an image of the castle for use in an upcoming
story, and they were willing to pay an uncharacteristically high price
for it, which was a nice surprise.
At first, I was honored, and felt that it was a great opportunity
for me. But, when I got their license agreement, I noticed that the
indemnification clause was very specific and overly protective of
themselves. Normally, indemnification clauses simply assure that the
photographer is the one who took the picture and has the right to license
the image, but this clause went far into very detailed descriptions. It
made it clear that I understood that they were going to use the image
beyond editorial use, and that I would "hold harmless any claims that
(Hearst Castle) would make against (the magazine)", for just about any
reason at all.
This kind of language was so far beyond the normal verbiage customary in
indemnity clauses, that it prompted me to ask about it. I was told it was
just a "boiler plate" agreement, which, as all photographers know, is
a common response to just about any objection one might raise. Accordingly,
my usual response is to probe and pry and negotiate out of it. But, there
was no negotiation on this point whatsoever. Their intended use of
the image was indeed beyond just editorial as they said. In fact, the
magazine wanted the right to use the image in CDs, products of many
sorts, and extended uses beyond description.
This is where several things dawned on me that raised suspicion:
- There are many images of Hearst Castle available from a wide
variety of sources, and
- Why is the price they were willing to pay me so high?
- Why is the magazine going to me ahead of traditional stock
agencies for an image that isn't that unique or hard to get?
- Assuming the magazine did go to stock agencies, why would they pass
up a relatively lucrative deal?
I had to do some fact-checking, so I went to the source: Hearst Castle.
It turns out that it already has its own staff photographer, and that
the Castle gives images away for free to those who request them.
Obviously, something was going on, and the representative for the
Castle acknowledged that the magazine had already contacted them, but
the Castle declined to allow use of the image because the magazine
also wanted to use it for commercial "products", a use which the
Castle does not permitat least, not for the price that the magazine
was offering. (Hint: even the price they offered me turned out to be
quite low. But I was young.) When I asked whether I could license one
of my own images to them, they said no because it was a violation of
my contract with them. "Contract?" Turns out, the ticket I bought to
get in has a statement about how you can't take pictures for commercial
purposes. They said they'd sue the magazine for trademark infringement,
and me for selling an image of a trademarked property. I didn't know it
either, but it turns out that Hearst Castle is, in fact, trademarked. I
didn't expect this, since it's also a California State Park.
By now, I put all the pieces together: the magazine wanted to license the
image from me because they knew they couldn't get it from any other
source. Then, they were going to have me sign an indemnity clause to
protect them against the suit that the Castle was assuredly going to
brings against them for their use of the image in commercial products.
I called a lawyer and asked two questions: First, is the magazine truly
protected? That is, can the Castle make claims against the magazine,
or is it all directed towards me? Despite the appearance that I bore
responsibility because of the indemnity clause, it isn't that simple.
First, there's the elephant in the middle of the room: the magazine's
large size and deep pockets would be the more realistic target for the
litigants. Second, even if the magazine tried to exercise the indemnity
clause, there's a term in legal circles called, "Unclean Hands Doctrine,"
which states that if someone does something that's within the letter of
the law, but is clearly acting in bad faith or in an unethical manner.
This is often why indemnity clauses are hardly ever enforced. You aren't
going to be responsible for the bad act of someone else's deeds if it's
clear what their strategy and motivation was. In this case, the magazine
would re-inherit the responsibility again.
Ironically, now that I knew what was going on, I realize that I, myself,
was part and parcel to the mischief.
So, I contacted the editor at the magazine, and told them that I couldn't
license the image to them because it would violate the Castle's trademark
on their property. At this, the editor tried to scold me for having
originally told them that I would license my image to them under their
terms, and therefore I'm now "obligated" to. I said that I would license
it to them under terms that limited usage to strictly "editorial" use,
which is all they "asked for." The editor agreed, but when he refused
to put it in writing, or remove or change the indemnification clause,
I realized that this relationship was too dangerous. I just backed
The next question was about the contract that was on the ticket.
This isn't so straightforward. It was this lawyer's opinion that such
contracts are, in fact, enforceable, but the circumstances are rather
involved. Turns out, this is more about contract law than it is about
trademark law, so it was outside of his field of expertise. I've spoken
with other lawyers about it, and have had mixed responses. One comment
stuck with me from one lawyer was this: "The part that usually trumps
the issue is the fact that many of these tickets are used for private
property, and the Hearst Castle is sort of a hybrid of both."
Then there's the case of the San Diego Zoo, which is a privately held
company, who has copyrighted and trademarked their logos and other
artifacts of the property. They also happen to be known for pursuing
photographers for copyright violation, as evidenced by searching for
relevant search terms on most pro photographer internet forums. The
zoo's basis for their legal argument is the same as the Hearst Castle's:
The ticket is a contract that says you can't take photos for commercial
use. And this raises two issues: intent and the definition of
Technically, the contract is intended to prohibit commercial photographers
from coming into the park with the intention of shooting pictures that would
be used for commercial purposes. This might include simply shooting a
model standing next to an elephant. Here, this is a matter of private
property enforcement, and this act can be prevented without having it
in the ticket contract.
So, now the question is whether someone (say, a tourist) shoots a lot
of family photos, and years later, someone asks them to use the photo
for an ad of some kind. In this case, there was no initial intent to
sell the photo, so now it's a question of whether this contract can
prohibit the tourist from selling the picture.
As another lawyer put it, "While the zoo may prevent you from taking
pictures while on their property, once you leave, your photos are yours,
and the only way they can prevent you from selling them is under a
copyright or trademark infringement claim." In that case, they have a
different uphill battle: only their logo is copyrighted and trademarked;
you can't copyright animals, and most photos the zoo objects to don't
really show anything that can be held as an instance of copyright
violation. Hence, there's not a whole lot the zoo can object to. Even
a photo that depicts the logo would only constitute an infringement
if whoever buys or licenses the photo from you uses it in a way that
violates the copyright or trademark. And, as you no doubt know by this
point, that's not your concernthat's the concern of the buyer. It is
only when the photo is used can its status be assess: is it "commercial"
in nature? If so, does htat specific use violate copyright or trademark
Here, the zoo would have to show that the publisher of the image used
it in a way that somehow damages or misrepresented the zoo, or that
the publisher somehow capitalized on the zoo's good will. That would be
unlikely, since such a thing is rather hard to do.
Of course, like the baseball pitch analogy, there's no ruling till
the judges call it. And there's no case to judge until someone actually
uses the photo in a specific way for him to make that call.
The subtler and more important part to observe here, is that some
companies go after the photographer, which is entirely inappropriate,
since there has not yet been a use of such photos to use as a basis
for an infringement. Simply having them on a website for sale is
not an infringement. It isn't until someone licenses the photo and uses
it in a particular way might it become such. As one lawyer put it,
"this is not much different than how many other media companies over
exaggerate their copyright claims."
Registration of Copyrights and Trademarks
While it is beyond the scope of this book to get into the process of
registering works with the US government for copyright or trademark
protection (though, it's easyjust go to www.copyright.gov, and apply
to register your pictures online, or use the one-page form), it's
important to know the ramifications of registration.
While both a trademark and a copyright can exist without having
to formally register a work, registration provides extended rights
from federal courts, such as eligibility for statutory damages,
which can range from $750 to $30,000 per infringement. Damage claims
can be as high as $150,000 if the infringement was willful or
intentional. Here, willfulness can be proven by the removal of a
visible watermark that had your name and/or copyright notice in the image.
(Sound effect of Vegas-style slot machine bells going off.) The courts
usually also grant reimbursement of legal fees as well.
But remember, the work as to be registered. If it is not
registered, the claimant is only entitled to the "fair market
value" for however the work was used, which itself is ambiguous,
since the prosecution would have to demonstrate prior activity
in the business of licensing (hard), or a pattern of industry
standards for such uses (even harder).
As a photographer, you may be reading the above information and be
thinking about your own photographs. Indeed, that's rightyou should
register your photos with the copyright office so you can optimize your
claim potential if someone steals your photos and publishes. For a much
longer discussion on this, see Making money from your stolen images (Wednesday, June 27, 2007).
To give a sense of this: if you do not register your images with the
copyright office, and someone steals one and uses it on a website, you
may be entitled to less than the cost of the parking ticket you got while
you were at your lawyer's office, strategizing your case. If you did
register the work, then you would be entitled to a minimum of $750,
but usually the amount is much higher if it even gets to court.
Yet, this is also a reminder that licensees are usually pretty sure
about the photos they license from you, and whether they can be
used in the manner in which they intend. That is, if the items are
actually registered, and they are higher-profile logos, then you
usually know it without having to do much research. So, they license
the mark from the registered owner. This has the ironic twist that,
if the items in your photo are not registered, it's also likely the
case that it's a rather low-value mark, so the extent of the
ramifications of an infringement are minimal. That is, the mark holder
is limited to "fair market value," and he has the burden of demonstrating
what that is. If it's an obscure mark, and it's not registered,
they're likely not in the business of licensing their own logo, so
they'll have a hard time justifying a high price. (And let's be
honest, if they were in the business of licensing their works,
they would have registered them with the trademark office.) This is
the kind of analysis that a potential licensee will do (and it's
mostly comprised of common sense), which again, means that you don't
have to think a lot about it.
And one final point: the licensee can always alter the image to
remove or "obscure" the mark in some way. I've actually had one
(editorial) book publisher client that was so paranoid of using
photos that had even the slightest possible glimpse of a recognizable
corporate logo on a piece of clothing, that they would have their
graphic artists "white it out" before going to press. Of course, they
still licensed the photo from me, so their irrational paranoia was
still none of my concern.
Lastly, none of this suggests that there's no risk at all. If the wrong
decision is made by a publisher, it could make for a very spectacular
headline. So, clearly, everyone should be conscientious of what they're
doing. If that happens, you'll be guaranteed a front-row set.
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