by Dan Pollack at Dan Pollack Law
Please keep the caveat in mind that this article only addresses general principles that apply in North America and does not constitute legal advice.
What is a property release?
A property release says that the owner of private property – objects, animals, buildings, works of art, houses, cars, furniture, etc. – has provided you with consent to take and use images of their property.
When do you need a property release?
The million dollar question. In general, only if you are planning to license or sell images for commercial purposes. You should get a property release if your images include works protected by copyright such as sculptures, art and even graffiti. You generally do not need a property release for photographs taken from a public vantage point that do not focus on easily identifiable private property.
It gets trickier for images of private property. If the private property can be closely identified with a specific person, such as a private residence or a pet – it is advisable to get a release. I used italics because unlike model releases and publicity/privacy rights, there is no legal concept that applies directly to property releases – it is really based on a “better safe than sorry” approach and not a specific legal principle. My recommendation is that if you are planning on licensing images of recognizable private property for commercial use – especially through third party agencies – you should get a property release because it will make it easier to license your images. The same principles apply if you are creating prints or greeting cards of your images that include recognizable private property, but there is less exposure to risk because in all likelihood the image will not be distributed as widely and it does not raise the same marketability issues as a commercially licensed image.
So what is the legal basis for needing a property release?
I have not seen a statute or court decision that mandates the use of a property release in certain situations, but there are two legal theories underlying the recommendation to get a property release. The first is the theory of association, which can apply in the commercial or editorial context. For example, let’s say that you take a picture of a private residence and you license the image to an organization that is trying to prevent some form of illicit conduct. If the use creates an impression that the house (and its owner) is involved in such conduct, it could a create claim for defamation. If you had a release for any use (including if it’s objectionable), the owner would have waived their right to object and you could point to the release to counter the claim.
The second and more common theory is referred to as conversion – this means that you used someone else’s property for personal gain without permission. An example of conversion is using someone else’s car without permission and picking up fares through a service like Uber. But it is not 100% clear if conversion would apply to a picture of that car since the picture itself is not the car owner’s tangible property.
What about pets?
The need to get a property release for pets is based on the same principles set out above – there is no special law or rule requiring a release for pets. Again, if you are in the business of commercially licensing images of other people’s pets, getting a property release is recommended to help make it easier to license your images. You should definitely try to get a release if you want to commercially license images of zoo or circus animals or of recognizable animals such as race horses.
Are trademarks covered by property releases?
No. Trademarks are a separate issue and you would need separate permission. For example, if you took a picture of your friend’s Volkswagen and your friend signed a property release, it would cover your friend’s rights in the car but not the Volkswagen trademark. In general, editorial use of a trademark is fine – for example, an article about Volkswagen that includes a Volkswagen trademark.
It will come down to the details for commercial use, but a key issue will be whether the use of the image with a trademarked symbol causes confusion or harms the trademark owner’s reputation. For example, if you license an image with the BMW trademark to use in an ad for driving gloves, BMW might object because it creates an impression that BMW is endorsing that product. It also depends on the approach taken by the trademark owner – some companies might see it as free promotion and not object while other companies take a more protective approach to the use of their trademarks.
What should my property release include?
You should work with a lawyer to prepare a standard property release, but some basics include your name and contact information, the name of the owner and their contact information, the date and location of the shoot, and a picture of the property with the release. It should include a release of all claims relating to you or your licensee’s use of the image and an acknowledgement that the owner is not entitled to any additional compensation. If you plan on commercially licensing your images through third parties, I recommend including language about the owner not being allowed to raise a claim even if the use of the image is objectionable to the owner.
Dan Pollack is a Toronto-based lawyer who primarily focuses on copyright and contract law, helping creators such as photographers, filmmakers, musicians and writers protect and gain value from their work. Dan is admitted to practice in Ontario and California. He can be reached at email@example.com and through his website at www.danpollacklaw.com.
*This article initially appeared in the Summer 2015 issue of Gallerie Magazine, published by the Professional Photographers of Canada (PPOC). Learn more about the PPOC by visiting their website: www.ppoc.ca.