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Author Topic: Permission to sell photo of local roller coaster?  (Read 12945 times)
flowerbells
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« on: April 23, 2007, 09:55:11 PM »
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Several years ago, before I started selling my work commercially, I took some pictures of a local roller coaster.   This is at a local amusement park, which is privately owned.  It does not charge a fee to come on the property, and people wander around freely in the park.

There is a charge to ride the roller coaster, of course.

All my photos are of local places.  That is their attraction and marketability.  There are no contemporary photos of our area, only historic ones, also some nice arial ones made  tacky with huge touristy words emblazoned across the photos.

I don't know whether I need to seek permission from these people in order to market and sell my photo of their roller coaster. By way of comparison:

There is a local   garden where permission is definitely required.  In fact, there are dignified signs at the entrance which say nobody can bring in a tripod, without signed permission from the administrators of the garden!  But before I talk about how that worked out -- really well -- here's a weirdo about another amusement park.

This other amusement park situation was a real hassle.  In that case, it was the annual festival sponsored by the City.  They have a name for the festival, and they hired a bunch of rides -- you know, tilt-a-whirl, ferris wheel, drive-through fun house, bumper cars, kids' rides, skill pitch games where you win huge stuffed animals -- it's a great place to wander around and people-watch, and do a few of the rides.  Anyway, I stood OUTSIDE the amusement area, because it costs to go inside.  I went up on a bridge, and got a great shot of the ferris wheel.

Then, a while later on, I called the administrators of the festival -- not to get permision, but only to find out what the exact week was, each year, that the festival  happened, so that I could post that on my website.  Hoo boy!  The fur started hitting the fan with those people! They told me I could not even use the picture of "their" ferris wheel at all!  

I felt certain this was untrue, so I checked around and got some free legal advice, had some pleasant but forceful conversations and letters back and forth with them.  They went to their legal advisors, too, and it ended up that they told me I could "not use the name of the festival."  So I just had to call it the "Summer Waterfront Festival," instead of giving it the well-known name it has.  Even though it's sponsored by, and given some funding by the City.

Here's the situation reg arding the privately owned, city sponsored garden.  My situation there was much the same as with the roller coaster that I'm trying to figure out now.  

I had some very nice shots of the garden, taken before I decided to go commercial.  So I took them to the President of the Board.  She loved them!  She very apologetically said that because it was in their bylaws that a fee must be charged for anyone to sell photos of the garden, she must therefore charge me a fee.  (The fee amount was not specified in the bylaws, she said.)  She asked me if I could afford a $25.00 one-time permission fee?  And I said of course, I would not mind at all.  

She said I could use my photos any time, for any reason.  I told her I would clear any photo with her, before I used it.

Now: the amusement park where the roller coaster is, has no such signages.  But I have a library book, which I plan to buy my own copy of, entitled: **Fair Use, Free Use, and Use By Permission: How to Handle Copyrights in All Media,** by Lee Wilson, attorney.  On p. 13 it says, in part:  "[y]ou can take pictues of buildings...from any point where you can legally stand (i.e. without trespassing on private property).  .... t is dangerous to use a commercial building....in an ad without permission from the owners of the property, since any such use arguably creates an association between the business housed in the commercial building ....And remember that photos taken in any private setting are subject to far more restrictions on u se.  Private-setting photos can easily lead to invasion-of-privacy lawsuits unless permission to take and publish them is obtained in advance.  When in doubt, get permisson.  Otherwise you may end up with a beautiful photo that you cannot display or publish because you fear a lawsuit. ...An ounce of prevention is preferable to a complaint in a lawsuit any day."

I do not know whether the above would apply to a roller coaster in an amusement park.  Haven't read the entire book yet.

Anyone have any experience with selling amusement park photos (that don't include recognizable people)?

flo
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Petrjay
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« Reply #1 on: April 24, 2007, 09:47:52 AM »
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Sounds like you've answered your own question, but another point to consider (since you brought it up) is that it isn't usually necessary for people to put up signs to take advantage of their rights under the law. For example: where I live, anyone who steps onto my land without permission is subject to arrest for trespassing, signs or no signs. Other jurisdictions have different requirements. It's always better to err on the side of caution.
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flowerbells
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« Reply #2 on: April 24, 2007, 10:07:16 AM »
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Sounds like you've answered your own question, but another point to consider (since you brought it up) is that it isn't usually necessary for people to put up signs to take advantage of their rights under the law. For example: where I live, anyone who steps onto my land without permission is subject to arrest for trespassing, signs or no signs. Other jurisdictions have different requirements. It's always better to err on the side of caution.
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flowerbells
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« Reply #3 on: April 24, 2007, 10:10:55 AM »
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Yes, I'm afraid you are right. That is, in terms of caution.  I have not received the kind of welcome from the office at the amusement park that I received from the garden, so I'm nervous.  They have not actually seen the picture, but they are not genrerally welcoming to the idea of a photo.  

But the exhibit place said they'd help.  


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Tim Gray
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« Reply #4 on: April 24, 2007, 10:19:15 AM »
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FIWI my 2 cents... not a lawyer.

Consent is required for "commercial use" - basically that usually means advertising or some other promotion (case law in Quebec is different).  The sale of fine art prints doesn't (in most jurisdictions) fall into the commercial use category.  Consent for commercial use is usually in the context of model releases, but I suspect the same might be the case for identifiable structures.  But I don't think you're talking about use for advertising.

Some buildings/structures are trademarked, which negates the "fine art" use above, but I can't imagine the ferris wheel has been trademarked.  There's an interesting series of amusement park shots in the current issue of Lenswork, and no discussion whatsoever of "permission" in the extended interview which comes on the cd.  May not mean much, though

The park may have an action against you for tresspass, but that's a separate issue from potential copyright infringement - or intellectual property issues.  I suspect that for any kind of tresspass action, given that the public has generally unrestricted access, is that they would have to ask you to leave, and you refuse.  Again, that's an action in tresspass, which is not related to the pictures you might have taken.  Clearly, if you're not on their property when you take the shot there's not much issue (other than potential copyright).
« Last Edit: April 24, 2007, 10:20:08 AM by Tim Gray » Logged
flowerbells
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« Reply #5 on: April 24, 2007, 11:40:57 PM »
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Clearly, if you're not on their property when you take the shot there's not much issue (other than potential copyright).
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Very interesting points, Tim.

The "not on their property" thing was with the ferris wheel shot.  We worked that one out, and apparently they did have some sort of intellectual rights -- trademark, as I seem to remember -- on the name of the festival, not the ferris wheel itself.  So they backed down and said I could use my photo, just not use the name of their festival.

Regarding the roller coaster, I don't really know anything (yet, anyway) about what sort of rights that outfit has, or will claim.  Questions I would need to find out would be, Does the park have some sort of usage prohibition against publication of their name without their permission?  Since they do NOT charge an admission fee [compared to the garden, which does, hence they can require a fee to allow commercial or professional photographers -- you know, "the ones with tripods"! ;-), would they be legally able to restrict an art or postcard photograph to be sold of the publicly used roller coaster?]

I have an idea -- some of my roller coaster postcards are for sale online.  The owner of the site loves to sell roller coaster postcards.  I'll ask  her what she thinks/knows about permissions.

[a href=\"http://www.postcardstop.net/cgi-bin/quikstore.cgi]http://www.postcardstop.net/cgi-bin/quikstore.cgi[/url]

Mine is the Oregon (Drake1) postcard.

flo
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Petrjay
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« Reply #6 on: April 25, 2007, 08:35:19 AM »
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The roller coaster is the property of the amusement park, regardless of whether or not they charge a fee to walk around the grounds. Using an image of recognizable private property for commercial purposes without a written release is just asking for trouble. You can rationalize all you want, but if the park wants to push the issue, you could be looking at some legal fees. I'm not a lawyer either, but I've been at this long enough to know a minefield when I see one.
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mikeseb
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« Reply #7 on: April 25, 2007, 08:48:09 AM »
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My non-lawyer's understanding, based on some reading and research (how's that for credibility!):

Depends on where you're standing when you shoot, and how you're using the images. In the US you can legally photograph anyone or anything you can see while standing on public property, even if the subject is on private property--there is NO expectation of privacy in the US for people out in public view. You own the copyright to the images produced as soon as you make them. I don't think, for instance, I could legally stop someone from publishing a photo of me standing in my boxer shorts in my front yard, taken from the street.

You can publish and/or sell the images as you please for NON-COMMERCIAL purposes (ie, not used to promote a business or product) without a release. You cannot, however, use images that portray someone in a false or defamatory light--for example, publishing an image of a person entering a brothel over a caption indicating he's a customer, when he may in fact be a delivery person or doctor on a cathousecall, etc.) There is obviously room for judgment here, which is a crack wide enough to admit a gaggle of lawyers with their briefcases, which is why many people obtain, and many publications require, model releases from every human subject.

All bets are off when you're standing on private property as others have written here. And the issue is not whether they charge a fee for admission--it's that they OWN the property and can legally control access and the conditions under which access is granted. Since you shot the ferris wheel pictures from outside their property, they cannot stop you from selling the images, as they've conceded. As for the trademark issue--now you're in need-a-lawyer territory. Could I sell photos of the Ford assembly plant near my home, taken from the road, showing Ford's logo prominently? Not sure how that would play.

How's that for jackleg legal musings?  You can have the next cell over--the food's not bad here.
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michael sebastian
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« Reply #8 on: April 25, 2007, 09:02:02 AM »
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... Using an image of recognizable private property for commercial purposes without a written release is just asking for trouble. You can rationalize all you want, but if the park wants to push the issue, you could be looking at some legal fees. I'm not a lawyer either, but I've been at this long enough to know a minefield when I see one.
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Yes but as Tim points out above, the real question and the one which so often gets muddled in this sort of discussion is what is a "commercial purpose" in this context?  Clearly using the image in your client's print ad for a business is.  But it is often said and I can't remember ever seeing the statement contradicted that selling such an image as "art" is not.

Nill
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LoisWakeman
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« Reply #9 on: April 26, 2007, 06:19:33 AM »
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Dan Heller goes into the US situation in some detail; basically, a photo of a recognisable structure as art does not need a release (though if you used it in a defamatory way I imagine they could sue you); editorial use (which is of course commercial in that it is content that sells a product) does not, but "proper" commercial use in ads/posters and the like does in certain cases too complex to explain here!

It is the release rather than the payment (if any) that is the important thing from the legal POV; of course, you normally need to pay for the licence if it isn't your image.

Oh, and this opinion is worth what was paid for it ...
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Petrjay
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« Reply #10 on: April 26, 2007, 08:51:53 AM »
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Mike is right about the loopholes and gray areas - that's why one seldom encounters a lawyer at a soup kitchen - but if selling postcards isn't a commercial enterprise, I don't know what is. My point is that there aren't many photographers who can afford to be constantly walking a legal tightrope. I know I sure can't. A little common sense goes a long way, and it doesn't cost $250/hour.

BTW Mike: sorry to hear they nabbed you - let us know where you're locked up and I'll send you a cake with a file in it. (Or is it a file with a cake in it? I never could get that one straight.)
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Nill Toulme
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« Reply #11 on: April 26, 2007, 09:07:50 AM »
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Your professional liability insurance should defend you on a matter like this unless you have the wrong coverage.

Nill
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ckimmerle
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« Reply #12 on: April 26, 2007, 09:34:40 AM »
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Unless the amusement company actually designed that particular ferris wheel, they're not in a legal position to try and protect it's image. Owning an object and owning the copyright or TM are not the same.

As for public vs. private property, I don't think copyright laws distinguish. If I'm right, that means you own, and can use, any image shot on private property even if posted. Of course, you could and probably should be charged with trespass, but an image is personal property and cannot be taken away simply because you happened to be standing on private property.
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« Reply #13 on: April 26, 2007, 10:50:45 AM »
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How much money are we talking about?  

Meaning: how many prints did you sell or expect to sell and at what price?
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Alain Briot
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« Reply #14 on: April 26, 2007, 11:55:05 AM »
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I think Alain is heading down the right road.  Take the sales you expect.  Triple that for punitive damges to make sure you never try thid again.  Divide that by 2 to get the lawyers' share.  Now divide that by $250 to get the time the lawyers can afford to spend on this case.  Multiply that by the probability of winning and collecting such an award.  Probably less than a day's pay at $250/hour.  

Now find a lawyer that will take the case for a one day's pay, even $2000.  The lawyer will likely spend a day in the court room.  Bottom line, it isn't worth suing you.  Pay the lawyer a $2000 retainer and 8 hours later he will pocket the cash and tell the carnnie he has no case.
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alainbriot
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« Reply #15 on: April 26, 2007, 01:22:40 PM »
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I think Alain is heading down the right road. Take the sales you expect. Triple that for punitive damges to make sure you never try thid again. Divide that by 2 to get the lawyers' share. Now divide that by $250 to get the time the lawyers can afford to spend on this case. Multiply that by the probability of winning and collecting such an award. Probably less than a day's pay at $250/hour.

Now find a lawyer that will take the case for a one day's pay, even $2000. The lawyer will likely spend a day in the court room. Bottom line, it isn't worth suing you. Pay the lawyer a $2000 retainer and 8 hours later he will pocket the cash and tell the carnnie he has no case.
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Sometimes it is simpler to be forgiven than permitted ;-)

Especially when there is little or no money involved . . .

One could also say you are advertising their amusement park :-)
« Last Edit: April 26, 2007, 04:28:07 PM by alainbriot » Logged

Alain Briot
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flowerbells
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« Reply #16 on: April 28, 2007, 01:02:14 PM »
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On the other hand, it's easier to be safe, than sorry.  It would be really sad for me if they tried to prohibit me from using the photograph (and yes, I completely agree that THEY benefit financially a lot more than I likely will!).  But if they would end up being real pills like the Fair people were about the ferris wheel shot, AFTER the fact, and even decided to take me to court, well, I'd a darn sight rather be doing my art and tiny business than stressing out and spending time over  court case!

flo


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Sometimes it is simpler to be forgiven than permitted ;-)

Especially when there is little or no money involved . . .

One could also say you are advertising their amusement park :-)
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flowerbells
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« Reply #17 on: April 28, 2007, 01:13:58 PM »
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Hi, everyone!

Thank you so much for all your wisely considered comments.

On Wednesday, my postcards were considered by a very upscale art place -- sort of like a gallery for a variety of artists -- right in the heart of Portland!  The partners were thrilled by them, even though my selection is small.  Only seven photos, except for two original drawings, which they are not interested in.

They have them on consignment in a 70-30 split, which is standard.

The three of us went through a similar friendly, but heat-ful discussion about whether permission was needed to sell the roller coaster cards.  This was largely due to the fact that I have a lovely framed photo of the roller coaster, a 12x18 blowup, matted, in maybe an 18x24 inch frame.  Colors of mat and frame well designed to bring out the roman reds in the roller coaster,which are "hidden" there since the picture is mainly various greys and whites.  It is a striking work of art,and I'd miss it hanging on my entry-way wall, but originally I had it made for selling.

Finally, the second partner came around to the realization the first partner and I felt already: better safe than sorry.  So she is going to telephone the owner of the amusement park in my behalf, and find out what sort of arragement can be made.

I am super glad to have her representing me in tis way!  It's an honor, plus should help greatly, as I have had no luck getting the owner's name, let along get to talk to her either by phone or in person, up to now!

flo
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Box Brownie
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« Reply #18 on: July 20, 2007, 02:29:05 PM »
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I am sure this is something that comes up repeatedly and whilst I am fairly sure the aspect of taking the picture from public property is 100% acceptable but if you are commercially benefiting from an image of private property i.e. selling said images, it is/was my understanding that you need a "property release" along the lines of a model release.  If the subject is recognisable and a known example of the 'subject', this even includes animals such a zoo stock, then it is deemed to need a release signed by the owner.

Now such a thing may vary from country to country but it is worth checking with an IP lawyer to get a definitive answer to cover yourself on this matter or any similar future ones.

Bets of luck
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jbrow375
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« Reply #19 on: July 25, 2007, 03:15:06 PM »
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This is why copyright law is one of the highest paying fields ... it is very hard to discerne what is okay and what is not.

But not that I have anything of value to add to the discussion other than I went and checked out your postcard, and that is a great shot! Nice work.
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