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What are the rules of selling a license to images with posters or art on the walls homes?

Published: 27/09/2016
By: larry

copyrightBrian asked the following question:

Recently, I was shooting a property that was being relisted. The homeowner had lots of images of Marilyn Monroe and Elvis Presley on the walls of a 2nd-floor loft/pool table area. And this dawned on me; What are the rules of selling a license to images with posters or art on the walls in these homes? I'm not showcasing the art on the walls, but a life-size Marilyn poster, or in another case, fathead poster of Golden State Warriors Stephen Curry seems suspect for copyright issues further down the road?

My partner, who is an immigrant with a fortune in equipment, doesn't understand American copyright laws and is the shoot and forget mindset, which I feel is totally irresponsible; and I'm looking for verifiable info about why one can't sell a license to images of copyrighted material, such as posters. Since he doesn't speak English at the level that I do, he believes that asking the homeowner to remove posters and asking for the listing agent to agree/sign a license agreement is too complicated and will prevent people from using our services.

Do you have an article on your site that has an example of this type of copyright question?

I don't think I've ever done a post on this particular subject. But from the research I've done, I think it would be best to leave out easily recognizable copyrighted images of celebrities from your real estate marketing photos. Here is an article I found that has a good summary of how to handle these issues.


5 comments on “What are the rules of selling a license to images with posters or art on the walls homes?”

  1. I would think that any shoot with copyrighted art in the background would fall under the paragraph in the suggested reading titled "Incidental Background."

    "In most countries, permission is not needed to include a copyrighted work in a photograph if its is merely an incidental part of the background, or is otherwise incidental to the principle object/subject represented in the photograph. It may, however, be difficult to assess what is incidental. The photographer should ask himself: Why do I want to include that particular work? If it is essential to the purpose of the photograph, then it cannot be said to be "incidental." Conversely, if it is not in the photograph for any aesthetic purpose or commercial reason, then there is probably no need for permission."

    Assuming the normal web based use of the images, the life size Marilyn Monroe objet d'art will appear on screen an inch and a half on the longest side. You're shooting for the sale of the real estate and the interior decorations are purely incidental, in my opinion (this obviously is not legal advice.)

  2. Context is a part of whether artwork is the subject or a background. In our case, the object and the forum where the photos are going to be posted is to sell the home. For third party licensing, it could be safer to replace artwork with public domain photos if they feature large in an image where they might be considered the subject (The Library of Congress is a great place to get PD photos). Agents are more likely to post photos of the stuff in a home rather than the home on a more macro scale.

    A good IP attorney can give a better response and cite case law. I can recall illustrations about this question in a book about Copyright law as it applies to photographers and how shooting in a city environment it is hard to not have some sort of Trademarked image in the photo. Another example is that a photo of the Transamerica building in San Francisco photographed by itself could have Trademark/Copyright issues, but the same building in a skyline photo would not. I don't think that there is a strict "percentage of image" criteria, but more of a "common man" interpretation.

    The only artwork that concerns me are photos of the homeowners and their family that they might want replaced. If I start worrying about paintings, I'd also have to worry about statuary, designer furniture. sculptures, etc. I'd be very interested to see a post from any attorney that has ever seen a case that would apply.

  3. Search for books with the term "Copyright Law for Photographers". There are a bunch written by attorneys with lots of examples. There are also lectures on YouTube.

  4. Re "incidental background"... a photo library manager once told me that as long as a work of art does not occupy more than a third of the final frame then that is OK, i.e. it cannot be construed to be the main subject of the photograph (this is just a verbal guideline, not a legal principle!) . But I have shot offices and homes which have been decorated with large murals where the artwork has really dominated the subject: in this case I always stipulate in my T&Cs : "The Client shall be responsible for obtaining any required clearances and will indemnify the Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances" to cover any copyright issues. The Eiffel Tower was once covered with a light display I think which the artist insisted made any photo of the Tower subject to copyright clearance! I don't know whether he enforced it! One thing I think is very important: I often shoot homes with large TV screens : I have seen some sales listings which have dropped in images onto plasma screens from Bond movies/ Breaking Bad etc to give the listing a "cool" edge: not a good idea in my opinion: even if it doesn't break the "one third" rule, grabbing a still from a movie/ TV show is a sure fire invitation for studios to "call Saul"! I think it's better to freeze frame something innocuous like a travel programme landscape and use that, or, better, have a stock of landscape shots of one's own to drop in. Re Ken's point about photos and paintings, I advise homeowners to remove personal photos as preferred ahead of time. Plus I have digitally substituted valuable paintings in interiors shoots with paintings by artists whose work I have copied (with their permission) when the homeowner does not want to publicise their ownership: if this was an RE shoot I would advise they remove them, but it was for a construction team who just wanted imagery for their portfolio.

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