Model releases for animals?

The majority of my pro experience has been at equine events, mostly polo. All the participants signed releases with the club so I didn't need to worry about it.

I was just approached by someone that wants me to build a portfolio of horse photos they can use on equine themed merchandise. There are hundreds of horse farms in Florida and it would be easy to photograph a variety of horses from the right-of-way.

If I were to photograph someone's horse from county owned property, is it legal for me to sell to a third party without a release?

Thanks for any insight.

Chuck Booher

Charles Booher said:

The majority of my pro experience has been at equine events, mostly polo. All the participants signed releases with the club so I didn't need to worry about it.

I was just approached by someone that wants me to build a portfolio of horse photos they can use on equine themed merchandise. There are hundreds of horse farms in Florida and it would be easy to photograph a variety of horses from the right-of-way.

If I were to photograph someone's horse from county owned property, is it legal for me to sell to a third party without a release?

Thanks for any insight.

Chuck Booher

Click to expand...

Property owners’ rights

Privacy and defamation cannot apply to objects (although defamation can apply to business entities). Things — cars, buildings, statuary, costumes, animals, etc. — don’t have legal rights. But the people who are closely associated with those objects do have rights and could claim that your photo of their property has caused harm. This is a tricky area of law, with few precedents to guide us. We discuss property releases in more detail on a separate page. In general, though, we advocate following the cautious rule, “When in doubt, try to get a release.”

http://asmp.org/tutorials/property-and-model-releases.html

http://asmp.org/tutorials/using-property-releases.html

Hope this helps...

Dave

The chances are you do not need a release as long as the photos are taken while you are on public land. Only living people have a right of privacy, which is what model releases pertain to.

In my 40 plus years in the business, including 15 years as Exec. at ASMP, I never saw a legal case stemming from the lack of a property release until a week ago. You can read about that here: http://web.me.com/weisgrau/RW/Blog/Entries/2010/10/15_Property_Releases.html

That court found that no permission was needed to publish a photo of property under California State law. Personally, while not an expert, I am inclined to believe the same decision would be made in other states.

As you are in Florida its laws would apply to your situation. You might confer with an attorney to determine whether the law specifically addresses the matter or whether there is court precedent addressing it.

Most of all, remember that the law may be on your side, but that does not mean you can't be sued. The California case had to be defended even though the defendant was eventually found not to be liable.

Richard Weisgrau
http://www.weisgrau.com
Author of
The Real Business of Photography
The Photographer's Guide to Negotiating
Selling Your Photography
Licensing Photography

With regard to the above comments...

If the owners of those horses themselves sell merchandise with photos of the subject horses, you are treading on very thin ice. If they can show that you are taking profit away from them, you would be liable for damages. The best bet when dealing with situations like this is to get a property release. Then, when one of those horses becomes famous and they start selling T-Shirts, they won't come to you demanding payment since you already have the release. Just my opinion...

Thank you for the helpful links and advice. I will proceed assuming that I will need to obtain releases from the owners of the horses.

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Chuck Booher

It's how the image is used that could cause problems. Simply selling a picture that has a horse in it or even a picture of a horse would seem to be governed by the same legal concerns that go along with selling other pictures, even pictures of people directly. Taking and selling pictures may annoy some people but it's seldom (if ever) not legal or legally preventable.

Could a use cause problems? I'd suggest the same kinds of issues that develop over use of an image with a recognizable person could develop when a piece of property or some object can be identified and connected to a person. If you used a picture of a car that is clearly someone's car ( a distinctive race car, a known personalized plate), etc., and used in to promote a product or in a defamatory way, then, there could be problems.

The images were to be used on t-shirts, mousepads, coffee cups, etc. This has become a non-issue for me at the present time, since the client wants fine art photography for minimum wage. I referred her Alamy for stock photos.

Fine art is not my strength and I'm not working that cheap.

Still, it is an interesting discussion and may prove valuable someday.

I understand that if it is a photo of someone's custom car, you are actually infringing on their art work. In the case of a horse, an owner may be able to identify their horse but they didn't create it.

In any case, unless I decided to pay an attorney to advise me on Florida law in this matter, I'd take the safe route and get the release. I know some horse farm owners and I'll bet I'd be able to get a release and their assistance for the small price of a CD full of photos.

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Chuck Booher

With regard to MY comments above....

Some of the other posters are more correct than me. I was thinking more along the lines of copyright issues. They are correct in that a model or property release has more to do with endorsement of a product. There was a thread here a few days ago related to property releases. Apparently there was a court case that stated a homeowner could not sue an advertiser for using a photo of their house in an ad since the photo was taken from public property. Still, in your case would a ticket be required for entrance or could the photo be taken on private property? Some of those can change the rules. Also, in your case you would be putting an image on an item for sale (e.g. A coffee cup). My understanding is that differs from fine art, but I'm obviously no lawyer. If you can get a model/property release, then you will never have to worry about it regardless of what you do with the image (barring defamation, etc.).

tundracamper said:

With regard to the above comments...

If the owners of those horses themselves sell merchandise with photos of the subject horses, you are treading on very thin ice. If they can show that you are taking profit away from them, you would be liable for damages. The best bet when dealing with situations like this is to get a property release. Then, when one of those horses becomes famous and they start selling T-Shirts, they won't come to you demanding payment since you already have the release. Just my opinion...

Click to expand...

It's not the artwork so much as with a custom car, race cars, etc., the owner is identified. If the car is used to suggest endorsement (or defamed) the owner is connected to the expression. In the case of t-shirts, mugs and the like, one has stepped beyond the idea of "news" and now are producing a product. Again, it could depend on the ability of the public or some legally sufficient group, being able to connect the "horse" to the owner and connecting the owner to the "idea."

You're talking about "conversion," and here is a case that removes "conversion" from being an aspect of law concerning photographers.

http://www.photoattorney.com/?p=447

Basically, the "property release" area is one that photographers are consistently winning...there is no legislature requiring "property releases" and photographers are winning the lawsuits.

Notice that we are not talking about situations involving trademarks. For instance, Disney has trademarked its Fantasyland castle every way from Sunday, so it would be pretty hard to use an image of that building without treading on a Disney trademark.

If a race car's image is not trademarked, its owner is stupid. And custom cars may be covered by copyright. Building architectural plans are copyrighted, but the US, the copyright law specifically exempts photography of the building.

Except for these particular situations covered by copyright and trademark, there is no legal basis for property releases.

--
RDKirk
'TANSTAAFL: The only unbreakable rule in photography.'

Some horses cost as much as custom race cars and owners could be every bit as sensitive when you're dealing with a horse worth millions due to lineage and stud potential. Met someone who helped ship (race) horses in and out of Florida in special airliners converted into flying horse transports that took them from the horse farms here to places on the other side of the planet for mega-wealthy owners.

Right or wrong, wanna guess who has the money to hire lawyers and pay them?
Rich folks or a poor pro photographer worried about rent next month... :-(
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Eric in Florida

I wouldn't be surprised to see this particular sort of case go a different way in the future. It was creatively argued that the "image" was subject to copyright - and the photograph is - so it must be tried in federal court as a copyright case. But it's also established legally that numerous photographs of the same subject can have their own copyrights. When trying to fight infringement claims when one "copies" or incorporates elements of a picture into another work (an unauthorized derivative perhaps?), the original image/photograph can be picked apart to see what elements of the original subject are subject to copyright protection to begin with.

In this case, the idea, the trees, grass, fog, the natural (but striking) occurrence of light? None of these elements are subject to copyright.

I'd expect photographers should be very wary of this case - if a view can be protected by copyright as an "image," what other views or "images" will be as well?

In any event, the OPs question goes beyond simple copyright and trademark. The "use" of the picture on products of various sorts is going to call into question if the name, identity, or likeness of the owner of the horse in question is somehow contained in the property or item (horse, whatever) in such a way that the owner's rights are infringed. Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) held that that California courts would afford legal protection to an individual's proprietary interest in his own identity - and in this case the identity was through a race car that in the ad in question was graphically altered, the number changed (as were all the cars' numbers) and some other details changed. In lay terms, it was decided that people could still tell "That's his car." In the potential use, will people, or the courts, be able to find, "That's his horse." in a way that there are infringements?

I'd expect that if the photographer, through some chance happening (I wouldn't know Seabiscuit from Dogbiscuit myself) happened to catch a well known and distinctively identifiable horse, and that horse was used commercially in a way that advanced or promoted a product, there could be a problem. Even if not for the photographer himself.

Craig Gillette said:

I'd expect photographers should be very wary of this case - if a view can be protected by copyright as an "image," what other views or "images" will be as well?

Click to expand...

I have never seen--in this case or any other--a supposition that the "view" itself was deemed copyrighted. In fact, there has already been at least one case where an attempt was made to support the copyright of a natural "view" that failed to hold up in court because the elements that the plaintiff claimed were copyrighted were merely "natural." That was in a case of sculptures of sea creatures embedded in acrylic.

Has anyone claimed copyright to all views of the Grand Canyon or any particular view of the New York skyline? I don't see that as being the case here, but rather that the use and ownership of that particular image was subject to copyright laws and--most importantly--that use of an image of property did not constitute in any way conversion of that property.

--
RDKirk
'TANSTAAFL: The only unbreakable rule in photography.'

"Plaintiff has not asserted that Defendant took any tangible object, so the only possible property of Plaintiff’s that Defendant is alleged to have converted is the image of “Plantation Road."

Not photograph, "image." Image is mentioned distinctly and separately from photograph in the discussion. Of course he didn't create a watercolor or pencil sketch so perhaps the court should have used photograph.

Regardless, it's additionally bothersome that the court would find that by successfully overcoming the owner's attempts at safeguarding his property, the trespasser was able to then achieve a level of federal protection for his ill-gotten gains. Which is odd because if one infringes a copyright, one can't legally copyright the resulting copy or infringing item. Equally remarkable is the concept that the court will suggest that nothing tangible was converted yet an item can't be copyrighted until it's in tangible form.

Perhaps the uncited other cases do a better job of taking conversion off the table, this one, settled out of court, doesn't.

Craig Gillette said:

Regardless, it's additionally bothersome that the court would find that by successfully overcoming the owner's attempts at safeguarding his property, the trespasser was able to then achieve a level of federal protection for his ill-gotten gains.

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That's not new. The fact that one might have been trespassing has never before gotten in the way of copyright. News media have done that more than once.

Craig Gillette said:

Which is odd because if one infringes a copyright, one can't legally copyright the resulting copy or infringing item. Equally remarkable is the concept that the court will suggest that nothing tangible was converted yet an item can't be copyrighted until it's in tangible form.

Click to expand...

A mime's street skit is not copyrightable, yet it is a "work" created by an author. It is not copyrightable because it is not in a tangible form. The question might be if I record a video of his skit, does the copyright of the video belong to him or to me at that moment. Perhaps that particular question has already been settled in court--I don't know. But we see here that there a "work" can be created by a man that is yet not in tangible form.

But we already know that a natural scene--not being a "work" authored by a man--is not in itself copyrightable (unlike the mime's skit), so that leaves only the copyright of the person who created the tangible form. The photograph is a work that in its very execution is already in tangible form.

The scene was not a work authored by a man. The photograph is a work authored by a man, but the photograph is not the scene. The photograph is not the earth, it's not the trees, it's not the grass--it is nothing that was the legal property of the university, thus profit from the photograph is not a conversion of the property of the university.

Or what...are we saying the university owns all the light reflecting from its property?

--
RDKirk
'TANSTAAFL: The only unbreakable rule in photography.'

I'll accept that under the circumstances discussed in that case and the ones supporting the discussion, conversion wasn't a winning cause of action, However, precedent being what it is, it wouldn't surprise me under somewhat different circumstances and with different state law issues at work, a case for conversion could be made. Particularly when a property owner has made an effort to prevent the types of uses that occurred here.