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Can I Relicense A Photo? Do I Need A Property Release?

In: 
Published: 27/07/2016
By: larry

3rdParyViolationNicola (on the West Coast of the US) asked the following:

I was hired by a local newspaper to photograph a real estate piece for a high profile house sale that used to belong to a celebrity politician in the old days but was owned and redone by another owner. The house looked completely different apart from some feature which I do not think appears in the photo in question.

A publishing company is interested in licensing one of the images from this set. I am wondering if I need property release, if I own the copyright - or if I was hired by a company to provide the photos for a newspaper article if they own the rights?

First of all, I and most of the commenters on this blog are not attorneys (except Joel Rothman) so all most of us can do is give you is our opinion based on discussions and personal experiences. The following is not legal advice.
Here is my opinion of the basics:

  1. In general, the person that takes a photo automatically owns the copyright for the image even though they have not registered it with the copyright office. However, it's best to register your images that you relicense.
  2. To transfer the copyright to someone else the photographer must sign something that says they transfer copyright to someone else. That is, you can't transfer copyright by just talking about it.
  3. Licensing (how a client is allowed to use a photo) is totally up to the written agreements you have agreed to with the client. Of course, this is done before the transaction.
Given those basics, what was your agreement if any with the newspaper you shot the photos for? Was there anything written down?
Depending on your answers to those questions you may or may not be able to license the image(s) to another publisher.
If there was nothing discussed or written down you can probably get away with it but I would ask your first client, what they think their license is. They may think they own the rights to the image(s) because you worked for them under a work for hire agreement. But again I believe that must be written down to establish the terms.
On the question of whether or not you need a property release:
I don't know if you legally need to I would get approval from the owners to license the photo to another publisher but if it were me, I'd get written release from the current property owners whether it's legally required or not just as a common courtesy. People can get very worked up over their personal space. And if the property owner is a celebrity politician the are more likely to be sensitive about photos like this.
In summary, I would consult with Joel Rothman (an intellectual property attorney) to make sure you don't create some legal problems for yourself.

5 comments on “Can I Relicense A Photo? Do I Need A Property Release?”

  1. I am not an attorney and this is my opinion. This is why every home you shoot should have a signed document that includes copyright, picture license, and property release (from owner) included in the document. A copy of this document can be included with the sale. Do I do this? I should follow my own advise because a lot of times I forget.
    When you are shooting a lot of homes in a day or shoot a lot of homes for one agent sometimes it is easy to forget.
    It's those times you will need it that you forgot and I believe in the example case above you should get a property release from the new owner but you should be the owner of the copyright and license.
    One more thing. If it is the copy right you are worried about, register all your images. And just an FYI small claims court for creatives for copyright cases is on the way. Not a perfect solution but you can read about it on the PPA site.

  2. The attorneys I have talked to and seen lecture have never seen a case where a property release has been needed. There are Trademark issues with certain iconic buildings and photo restrictions that you implicitly agree to when visiting someplace such as Hearst Castle in California (it's posted on site and the web and maybe even on your ticket).

    The rule of thumb is that anything you can photograph while on public property is fair game. There was a case in the last few years involving a photo of some often photographed homes in San Francisco that were used in an ad for foreclosure help. One of the owners tried to argue that he was "damaged", but lost as they was nothing in the ad that stated anything about the homes in the photo. It was just a good photo of some neat looking homes taken from a public street.

    Some RE photographers are asked to sign privacy agreements when photographing homes of high profile people when they are given access to the property. The thing with RE work is that publication is goal so they often just want to make sure that they get a chance to review the images before they are released in case they left a bong out on a table.

    Personally, I don't worry about property releases and I sell secondary licenses to images that I make. I don't want to create yet more paperwork to keep track of and I don't want to raise the issue. I haven't had a case where an image sold to a third party is identified by address. Think about Google street view ….

  3. If you signed a Work Made for Hire contract with the newspaper or were their employee, they will own the Copyright. If they hired you as an independent contractor without a contract, you will own the Copyright. You should register your Copyright for the images. Timing could be an issue since published images need to be registered within 90days of first publication for full protection. Even if it's been longer than that, it's still a good idea since you will get some protection.

  4. The first question would be, in what country is the photographer located? I think we are assuming here that he is in the US. As far as I know, there are no specific US laws requiring a property release and there seems to be minimal case law regarding this matter. Some would therefore say there is no requirement to get a property release, and others would say that it is better to be very cautious and to get one. However, regardless of the what the law may be, some clients may require one, and many stock agencies require one in order to license photos for commercial usage.

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