Photography Law

That's a hard one Steve and wonder about this myself. I believe as long as you don't use it for advertising that's fine. I am not sure about National Parks and I shy away from Pepsi, Coca Cola or any brand names. There could be a lawsuit on your hand, then you would have to get a lawyer. Just be on the safe side.

Seems to me you touched on about every aspect of copyright and trademark law in a few sentences. I suggest you do some internet searches, buy a few books and spend 10 hours or more looking into the various aspects of intellectual property law to get a basic understanding of the laws and the rights of photographers. You could also search the forums here for some good links.
As for the statue I would ask permission from the sculptor. You may also need a property release from the mall. But that depends very much on the actual use.

the statue is copyrighted. the mall is private property and they can set their own rules. you would need a permit for a model in a public park. though you would have to check the rules. you can sell houses and people on the street as art - but not commercially. you take a risk selling a house commercially, you would need permission for that. don't know what happens if they move though.

the statue is made by another artist so that's a total no.

pepsi and the like a trademarked. and its doubtful anyone got permission. i think if they are in the background its ok. but if its just that, then your taking a chance. fine art isn't free pickings. you can can get in trouble for any of these things if people find it and press charges. most probably won't, and trademarks may ask you to remove it. in a court of law, you may win. but you don't want to go to court, so i would proceed with caution, especially with statues and trademarks, especially if the goal is to make money from someone's name or art.

oh and i'm not a lawyer and blah blah blah

---Mike Savad
MikeSavad.com

No i don't plan on using Pepsi, Coke, or any other brands in my images, I just thought it interesting because I have seen pictures that have sold with them on this site. As far as National Parks, everybody is selling pictures of those as it is public property. I just heard that they have made a new rule with using a professional model doing photo shoots that you need a permit now. I also get that commercial sells are a whole different ball game, which I don't want to play.

Mike you said,"the statue is made by another artist so that's a total no". No I shouldn't try to sell it as fine art or what? I realize that an artist made it but i am putting it in a whole new context with the photograph. So would that mean any picture of any statue wouldn't be able to be sold without permission? What if they were dead? I think this is a great discussion for everyone, please respond back.

Your whole premise may be invalid.

Where you are standing, public properly or not has little or nothing to do with it. It is the subject you are shooting.

The public property or not is a whole different set of laws, as in tress passing or not.

But you really have to understand, with out the finite details, you are not going to get a good answer here, not to mention that no one is a copyright lawyer here.

We have what seems to be a dozen threads a month like this. And the all get about 7 zillion different responses and not one of them ever adds up to a good answer to your question simply because each and every case is different and only a copyright lawyer can really give you legal advice and only a judge a definitive answer.

a statue is no different than another photo or a painting. doesn't matter if its in the public, unless the statue is very old, it's considered someone else's artwork and you can't sell it. you can contact the maker of the statue and get their permission however.

you'll have to look up copyright law pertaining to statues and such. i stay away from them when i can, mostly because they are already art, unless your shooting in some special light or making it look different, its usually not all that interesting.

---Mike Savad
MikeSavad.com

I served on a committee for years, at the pleasure of the county supervisors. It was called Art In Public Places. We raised money from the private sector and commissioned artist to do artwork including sculptures. In many of the cases we were able to get the full copyright on the piece and then turn around and place it in the public domain because it was paid for through non profit donations from the private sector. Some artist were not willing to do that, usually we passed. Several of these pieces are in public parks and courtyards of government buildings and no one needs a permit to take picture and sell them.

Not all sculptures are copyright. Many that were paid for with public funds are not.

This what I was saying above. There are no easy answers.

Bradford Martin, has given you the best advice.

the one thing i'm pretty certain about is - the mall would probably have things from a local artist. its probably not out of copyright. there is probably a name tag at the base. but it would be no different than a painter painting your photo and calling it different.

---Mike Savad
MikeSavad.com

Hi Floyd, I understand what your saying. But I took a brief look at some of your photos, you have shots of buildings that are known businesses which were shot from what i would assume to be a public road. Did you worry about using these images for fine art sale or did you get a release? Everyone and their dog is doing and posting shots like that. Is it really something to worry about that much , or am I just being overly paranoid? Your response would be greatly appreciated. If anybody knows a good site as to a lawyer or info pertaining to this please feel free to list it for all of us. Ive looked on the web for answers pertaining to this question and it seems like you just continue to go on a wild goose chase with no straight answer or conflicting ones.

Not trying to be a party pooper or make anyone mad, but I'm curios.

buildings are not statues. and unless your an architect, then that kind of permit doesn't or shouldn't apply. that doesn't mean that the business won't complain or want their slice of the pie. just don't use it commercially and you should be fine. most lawyer sites will hold back or "don't quote me on this" type answers. even if you hired one they will say it depends.

mostly its the commercial use.

i remember reading online about a window of a house that was photographed and used in some kind of way that made the owner look poor. it was just a window, but recognizable enough to the neighbors that they all thought they were down in their luck. i think they were able to sue the photographer for using it commercially like that, showing hardship. so if your going to use it commercially, shoot it in a way so it looks generic enough that it can be any old building.

for art, its more relaxed because i think its covered under freedom of speech or freedom of creativity or something.


---Mike Savad
MikeSavad.com

"or am I just being overly paranoid?"

In my view, yes. If you have a unique perspective and a desire to get your work out there, then find a way to get it done. As you have noted, plenty of others have.

Once you become paranoid, you become paralyzed and your ideas never see the light of day. Do the art. Above all, above everything, do the art. If/when you need clearances, get them. Let nothing stand in your way.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

Ok, just added a low res pic for the image in question to the main post.

A lot of malls across the country were built in part with public funds through redevelopment agencies and tax increment financing. In California, they also have a 5% for the arts program law. A developer has to spend 5% of the total cost of new projects on the arts. That 5% was deductible as a charity in some cases because of the way the developer structured the placement and the purchasing of the art. Once again a lot of that art was placed in the public domain because it was deemed to be paid for in part or in it's entirety, depending on the way it was purchased, with public funds. We used a combination of the benefits of tax increment financing, 5% for the art and Art In Public Places to place art in private malls. The public owns the sculptures and the mall can not prevent you from taking pictures of it.

At the time the local mall in Santa Maria was built, the lead guy for the developer was a guy named Henry Barron. You can google him. They had a ownership position or a managing partnership at the time with over 36 malls in the USA and Canada. He sold out to a company name Trisect out of Canada and later sold to Brookfield Properties. I used to hold stock in these companies but I sold it and lost track of them. All of the artwork was placed in all of these malls, that have artwork, in the exact same manner. It was Henry that showed us how to do it the most economical and the most public friendly way. That way if the mall owner decides the level the mall and build condos, the public does not lose the art. It reverts back to the public entity that was partnership in the tax increment financing.

Like I said, case by case bases, and no simple answers.

When I look at that image, I have to agree with Dan.

The old adage of "some times it is better to ask for forgiveness then permission", comes to mind. lol

I see a photograph of a sky light myself.

Once again Floyd, what about some of your pics with businesses or anybody's. Like pics of the Sand's in Vegas or similar, do you think someone is going to have a cow?

I've seen several posts here about the beer or pop logos being sold and the answer was from the moderators, I believe...as long as it's an art print they can be used. When you sell them on mugs, tshirts, etc then you're infringing on the copyright.
Statues, etc...if they are the main focus of the photo it's a no-no. If it happens to be a small portion in the background or such then it's 'probably' ok. I've seen photos sold here of the reflective ball thing in Chicago as the main subject, I don't know the name of the sculpture, but that is a definite infringement unless the photographer has a release from the artist.
Private property such as barns and livestock...you need a property release from the owner. I forget who he is but an FAA artist takes photos of his neighbors barn and cattle and has a property release from them.
Famous buildings, houses...Frank Lloyd Wright...you cannot photograph and sell famous building that would be recognized by their style.
Eiffel Tower...cannot photograph and sell this when it's a night shot.
Signage in LV, some also can't be photographed. Saw it mentioned by one of the moderators.

I found most of these can and can nots while searching on the internet for specific CR laws regarding photography. Because it's so difficult to figure out what can be photographed and if permission is needed, I decided to stick with wildlife, flowers, still life, and landscape to be on the safe side.

My advice given above is just that as I'm not a lawyer, Yada yada yada...

"Did you worry about using these images for fine art sale or did you get a release? '

No, and no, for a gamut of reasons.

"Ive looked on the web for answers pertaining to this question and it seems like you just continue to go on a wild goose chase with no straight answer or conflicting ones. '

Yup, exactly what I was trying to tell you in my first and subsequent posts. No one has the answers, only opinions and on a case by case based, they may or may not stand up to actual legal scrutiny.

paranoia is a good thing. it keeps you out of potential trouble.

vegas stuff, is actually out, most of my things one site found had to be removed. probably because of trademark issues.

the law is confusing and you won't find a solid answer, because they make it up as they go along when they are in court. but ideally i don't think you will end up in court unless you make obscene amounts of money off the prints. like that one guy who photographed hassidic jews from a distance. he sold the images for like $20,000 a piece. and the guy in the picture wanted his cut... he lost. but still they had to go to court.


---Mike Savad
MikeSavad.com

"I've seen several posts here about the beer or pop logos being sold and the answer was from the moderators, I believe"

There has been no moderators post in this thread. Every post heir is just someone's unwashed opinion. lol Take them all with a grain of salt, including mine.

Like I said, the has been a gazillion posts in different threads and the all do not add up to a legitimate legal opinion.

Read what Dan said.

Do no allow yourself to fall into paralysis by analysis.

"he sold the images for like $20,000 a piece. and the guy in the picture wanted his cut... he lost. but still they had to go to court."

That's a perfect example of "cost of doing business." If you want to be in the game and sell photos for $20,000 a pop you will never get there by being the least bit paranoid. Fortune favors the bold.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

yet he still went to court, it took a while, and who knows if he sold enough prints to cover court costs.

they never mention those parts.

---Mike Savad
MikeSavad.com

"yet he still went to court"

Mike, you're very very afraid of court, which you have established repeatedly in this forum. Court is just another business tool to be leveraged to one's advantage.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

As always, thanks for the great replies. Its great to be a member of such a wonderful community. I think I like your answer Floyd, the statue minus the base is only a small portion of the image. I took this photo because of the artistic composition of the whole image. Which in my mind I would think as Fine Art, I would think I would be able to sell this print as such being that this is my own personal composition. Once again if someone knows of lawyers that you have dealt with on this subject please post. Once again this would be for a fine art print, not commercial licensing.

"Once again this would be for a fine art print, not commercial licensing."

If it were me, I wouldn't think twice about offering it for sale.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

no its not dan. its not a business tool, its the opposite of that. its more like gambling, you may win, you may lose, the house always wins. the lawyers win here, you may lose, you may win. but either way you lose money. there is no promise that the artist will win. mean while your not working, it takes years to go through this, it could last forever, and your money is draining away.

so there is no good reason to take a chance. it seems to me that your looking forward going to court. i would assume your watch too many of those court shows on tv. but they never show anyone spending the money or the time it actually takes to be there. being an occasional witness in court is not the same as being sued or defending yourself. you were just there as a guest star and could go home right away. everyone else had to endure. i doubt its as fun or as good as you think it is.

if its fine art it might be fine. but i would still question it if it was a trademark. the most a company will do is tell you to take it down. because no matter how big the company is, they don't want to go to court either, because they know its not good for business.


---Mike Savad
MikeSavad.com

Steve, keep in mind. No one is going to knock on your door and haul you off to jail if they have a problem with it. They are going to contact you and lay out their concerns. Unless you make a ton of money of it, the most you are going to have to do, more than likely, is take it down.

the law is like this:

you may have never had a car accident, not ever. so what is the point of owning a car with air bags or seat belts? don't wear the belt, that's what "they" want you to do. don't cave in to that fear and paranoia, it will never happen to you trust me....

do you believe that for a second? will you not wear one because you or others have yet to have an accident? it would be silly to think that. common sense says you should wear one - just in case. and its the same here. for the most part you'll be safe, but it all depends. a shop owner can sue you if they want. but they probably won't because it's costly. a person would have to find you, but then they would have to prove damages. if your a street photographer, and you call them a name of some kind, they have grounds, otherwise they don't. if you shoot a trademark or a statue, you may have other issues. the statue is easy to remedy, find the artist contact them at most they want their credit line. easy peasy.

the name will be on the statue, otherwise its on the net and someone must know about it. contact the mall about it. it may be worth the trouble. if its not, its not worth posting at all. i wouldn't toss caution into the wind, your right to be cautious about these things. but there are things you can do about it if you really, really want that image.


---Mike Savad
MikeSavad.com

There's a simpler approach. Contact the mall management company and see if you can find out who you need to contact to get permission to photograph the statue, or if you even need permission. The mall might not have a problem with people photographing their statue... after all, the place is probably overrun with teenagers and other people taking photos with their cell phone cameras, so they may feel that enforcement of a "don't photograph the statue" rule isn't a position they want to take with the mall customers.

Although...I might avoid bringing up the fact that I'd already photographed it...

Disclaimer: not legal advice, just an idea.

Mike, you seem to be painting a pretty bleak picture considering the odds of what you are describing are probably about 1 million or maybe as high as 10 million to one that anything even remotely resemble anything that is likely to actually happen.

There are millions and millions of these cases dealt with with the exchange of a couple of emails or letters and no one pays anyone anything.

Agreed, Floyd. I believe people are smart enough to recognize over-the-top paranoia when they see it.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

"the law is like this: '

Okay, everyone take notes!! lmfao!!!

But I do feel better now that I know what the law is like, don't you? :-)

maybe yes, maybe no. if your cautious like many people are then it may not happen.... or they will make an example out of you and you will be the 1. it can happen. and it can be avoided.

i've dealt with companies that wanted to use a commercial place as a puzzle, but they did not want to take the responsibility of the law. telling me i have to get permission from the place, and i knew that was the type of place that wanted more than a few bucks. i told them that if they can get the permission, and give me a copy of said permission, then it would be ok by me if they wanted to use it.... i never heard back from them again.


---Mike Savad
MikeSavad.com

dan you have nothing in your folder that suggests you follow your own advice. you work in a company as some kind of art director. and if you make a mistake and choose the wrong thing, your company has their own lawyer, so you may not even be in the loop if something actually happens. yet your free to send people off giving them advice that could land them into trouble.


---Mike Savad
MikeSavad.com

"you work in a company as some kind of art director. "

It's my company, Mike, and has been since 1979. It's been through several incarnations (I change with the times). I make the rules, I pay the wages, I answer the lawsuits, I do the court appearances, I even serve as an expert witness for cases not involving my business. I haven't had a job since 1979.

I can tell you that in my experience, your scenarios are laughably, incredibly unlikely. I've never (fortunately) had to deal with anyone as paranoid about the legal system as you. You have no experience whatsoever to back up your outrageous fantasies about court.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

i'd rather live safe. you can live any way you want too. in the end it really has to be worth it. you can laugh if you want. i don't care. i play it safe. it works well for me.


---Mike Savad
MikeSavad.com

Mike, you imply that I'm not safe. You're wrong again, as usual. You enjoy living in a dark room behind a keyboard, imagining all sorts of boogy men. That's fine for you.

Artists push themselves and push boundaries. I like to encourage people to live life and go after their dreams, rather than hitting them with a big dose of Savad paranoia.

I often think "How can Mike be that paranoid?" Did something happen to make you that way? Or perhaps you are afraid of the competition and take every opportunity to shut photographers down?


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

but you encourage people. but you don't do it yourself.

then it makes me wonder why.


---Mike Savad
MikeSavad.com

"but you don't do it yourself."

Now you're just being silly. Did you know that NFL head coaches Bill Belichick and Mike Shanahan (both with multiple Superbowl rings, among others) never played in the NFL?

Please share more of your wisdom.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

silly? no.

you offer legal advice as in - just do it - nothing bad will happen to you... yet you don't do it yourself, which says something.

---Mike Savad
MikeSavad.com

I see you're out of ammo. I'm off to a gig. Have a great evening, Mike.


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

i'm out of ammo? so this is just a game to you?

anyway, to answer the question for the op --- is the image so worth it to you that your willing to fight for it?


---Mike Savad
MikeSavad.com

I am also not a lawyer so this is not legal advice....

My understanding is that architectural works such as buildings can be photographed and those pictures sold regardless of whether they are privately owned or not.

Federal law seems to be very clear on that issue:

17 U.S. Code § 120 - Scope of exclusive rights in architectural works
(a) Pictorial Representations Permitted.— The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

The confusion arises because some buildings may be trademarked and used as parts of logos (ie. the Transamerica tower), therefore trademark law may apply. The Eiffel tower was mentioned earlier - the tower itself is not protected but the light display at night is copyrighted. It is photographs of the light display that can't be sold.

I saw a photograph by an FAA artist a couple of years ago which was a photograph of a lettering job I had done for an antique shop in Hollister , Missouri(near Branson) called "The Green Lantern". I wrote her about it but it never dawned on her that I had painted the letters on the glass store front.

I was impressed with the idea of the photographer selling these however more impressed with the fact that I had painted the letters in 1985 and they held up so long. They are still there as far as I know. Either way the photographer never credited me with being the artist as she only could mentally register in her head an antique shop store window.

Vince Von

Life's to short to worry about it. Attorneys are too expensive to ask. Be your own boss.

You should really look up your countries copyright laws for yourself.

I took a photograph of a statue in a railway station in London and I emailed the sculptor saying how much I loved the statue and sent him a small image of my picture asking if he would be happy for me to put it on my website and hopefully sell copies of it.

He sent back a reply to say he loved my picture and he was happy for me to offer it for sale so I sent him a big print of it as a thank you. Always good to ask first!

I also give credit in my description that he was the sculptor.

Wow! Such great replies. The only real clear answer that I see is from Jim Poulos, where he actually posted the federal code. Which pertains to one of the things I had heard about, where is long as Its in the public view its fair game. I would presume that this would apply to peoples barns and homes. As far as the statue goes, is it a picture of just a statue or a statue that is in the field of view within an architectural work. If that is the case of perception it seems that it should be able to be sold as fine art, and as always commercial licensing would be a different ball game.

I still haven't seen any post for a website or address for a legal firm that directly deals with these types of situations. So if you know one, post it in this thread.

Thanks everyone.

you would have to find a copyright lawyer. the hard part of all of this is that it is different from place to place. countries have their own rules, states may have their own rules. i don't know of anything directly, and because its the net you don't know how true any of it is. i think Dan Heller - i think he has legal stuff on his site, but again, you have to be careful of free advice.

the architecture thing only applies when your making the building itself. but i think it's the name on the building that may get you later. chances are the statue is fine if you can get permission. but there really are no clear answers.

one guy was sued because he took a picture of a tree. the tree happened to be a symbol for a trademark of some kind. another person took a double decker bus photo and removed the color from the background. he didn't know it was a trademark, he got in trouble. another guy shot a boat in italy, just a fishing boat on the pond. the boat owner sued him for taking the image and the boat owner won. he knew it was his because of the coloring of the boat. i think there is an angle of the ny stock exchange you can't take, there was i think a court trial where the exchange people complained they owned all the views some how. but then it was decided that the bulls out front can't be shot because it was a part of their trademark or something like that.

there are some things you just can't tell what could get you in trouble. but there are others that are just common sense. unlike others... don't assume going to court will help your business some how.

---Mike Savad
MikeSavad.com

I'm sorry Mike, but I agree with Dan, you are spreading fear and paranoia where it is just not called for, based on nothing of significance to support it.

Sure, anyone can dig out a few examples of where lawsuits have been filed. But the bottom line is million and million and millions of these kind of image are sold every day.

In fact. the last few days the Recently Sold pages right here on FAA have has a dozen or more images exactly of the kind that you are trying scare people into not selling. Are you going to go tell all those people they broke the law or were making a big mistake for selling those images? Is that really your purpose in life these day? lol

You make assumptions base on zero real life experience. How many time have you been to court?

Dan is absolutely correct, the courts can be an excellent business tool. And any one that has spent any time at all in business knows this. I have used the courts several times in several different business to gain a positive result. Ever heard of small claims? Or had to evict a deadbeat tenant?

For every case that ends up in courts there are probable several million that go totally unnoticed.

You making comments like "the law is like this" and thinking that is the way it really is just because you say so, well... like Dan said, that is just silly. The world is nothing like that. You need to get out more.

You keep making statements like; "paranoia is a good thing." No, it is not. It is a mental illness.

Paranoia: a mental condition characterized by delusions of persecution.

Kind of fits here, imho. lol

The other day you said something like if a businessman is positive that will lead to bankruptcy. Really?

Thank you gentlemen

The only really good response in this thread was to contact the mall.

Thank you