Client care: Photography licensing question Locked

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Michael Fryd
Michael Fryd Forum Pro • Posts: 15,931
Re: Client care: Photography licensing question

bodeswell wrote:

Michael Fryd wrote

In the USA, property generally does not have rights of privacy nor rights of publicity. Therefore you probably don't need the homeowner's permission to legally use the photos.

In the USA there is a complicated morass of local laws, so I would not go with such a blanket statement. There have been cases that upheld a photographer's right to take pictures through open windows where the scene photographed was in any case visible from a public place where the photographer was entitled to stand. But in this case it sounds like the photographer was perhaps inside the house taking pictures of things that could not be seen from the street.

You are correct in that the law is complicated. At best, the web can provide guidance on the general case. The specifics of a particular situation can result in quite a deviation from the general case. When it comes to legal advice, always consult an attorney.

But let's get back to the general case.

In the USA we frequently need a model release from a person as various state laws give a person certain rights of privacy and publicity in their likeness. While I may be in a situation where I can legally take your photo, I probably need your permission in order to use that image to promote goods and/or services.

This is not the same as making money from the photo.

For instance, suppose I take a photo of you sitting on a bench in a public park. it's a public place, so you have no expectation of privacy, and it is likely that it is legal to photograph you.

I generally would not need your permission to sell that photo to a newspaper to be run with an article on those park benches being replaced. I probably would need your permission to run that same photo in the same newspaper in an add from the manufacturer of the benches.

The first is "editorial" use which generally does not need a release, the second is commercial use which generally does.

Editorial use does not give you carte blanche. A release would be needed to run that image along with a story about child predators lurking on our parks. Such usage would "paint you in a false light" in that it would imply that you were a child predator. I would need your permission in order to falsely imply you were a child predator.

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On the other hand property and things, do not generally enjoy rights of privacy and rights of publicity. Thus, if I have legally photographed your home, your pet, or your belongings, I generally do not need a release to use that image in a commercial manner.

The key here is "legally photographed". In situations where you have a reasonable expectation of privacy, it may not be legal to photograph you. So if I am across the street, and use a long telephoto lens to invade your privacy through a crack in your curtains, I may have broken the law by taking that image. In some areas there are specific laws against taking certain types of photos. For instance "up skirt" photos, or photos taken in a bathroom, changing room, or locker room.

I am not aware of any issues where there was an issue taking photos through in open window, where there were no people in the photos. So while I may not be able to stand on the street and take a photo of you through a crack in your window, I probably can take a photo of your pet through the window.

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There are also contractual issues here. A private home is private property. The owner of private property can place restrictions on photography on the premisses. For instance, I can give you permission to come on my property to take photos, but only under the condition that you will refrain from taking photos of certain objects, will give me copies of the images, or will use the images only in a limited fashion. If you agree to such terms then you are bound by them.

In the OP's situation, given the facts we have, it does not appear that the homeowner placed any a priori restrictions on photography. We have not been told of any contractual restriction between the photographer and his client (the designer). Therefore (given the facts that we know) it is likely that the photographer has the legal right to do whatever he wants with the photos. This includes requiring the designer to pay an additional license fee for the additional use of allowing the homeowner use of the images. The photographer may also negotiate with the homeowner.

Again. The above is a discussion of the general case. I make no claims that it applies to the OP's specific situation.

As regards the OP it might be a better business strategy not to irritate the homeowner or the interior designer unnecessarily unless you have made the licensing requirements clear to both parties up front, before the question arises.

We agree here. There is a difference between what the photographer is allowed to do, and what is best for his business.

On one hand, he may not want to give away his work. On the other hand it's generally bad for business to annoy clients.

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But let's turn to the practical side here. Assume that the photographer decides to charge an extra fee to let the homeowner have the images. What do we think the likeley outcome will be?

Possibilities include:

  • The designer says no to the fee, and gives the images to the homeowner anyway. The designer starts to look for a different photographer who isn't a pain.
  • The designer says yes to the fee, and starts to look for a different photographer who isn't a pain.
  • The designer says no to the fee, and the homeowner doesn't get the images. The designer starts to look for a different photographer who isn't a pain.

None of these seem very good for the photographer's long term business.

My suggestion is to assume that in the future the designer will let the homeowner have the images.   Increase your fee to accommodate this.    Everyone is happy.

I find that my customers are much happier when I quote them a fee that covers everything.   They are very happy that the fee I quote is the fee they end up paying. Sure, they may have paid a little more or a little less if I nickel and dimed them for every little thing.  But there is a lot of customer satisfaction when the fee they end up paying is the one you originally quoted.

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