photo release

**S* H* <s*@saxonholt.com>**

On Oct 7, 2007, at 9:00 AM, gardenwriters-request@lists.ibiblio.org  
<Rich Pomerantz> wrote:
>
> As for the publication/release question, that one is a tricky one to 
> pin down a firm answer to. Whether one needs a release to publish 
> photos of a garden one had permission to have access to is as much a 
> question of good practice as it is one of law. Strictly speaking, one 
> probably does not need a release to publish a photo of private 
> property if the image was made while there legally and with the 
> owner's permission and the photo is used in an editorial use, that is, 
> not in an advertisement, but in a story in a magazine. This is akin to 
> a news story, and in the U.S. no release is generally needed, unless 
> the story depicts the place shown in a negative or inflammatory light. 
>  (In France and I think other European countries it's more strict and 
> releases are needed for almost every use). So I believe the lawyer 
> consulted was correct.
>
> But then of course, if the property owner for some reason, (such as 
> where they die & the heirs now control the property) does not want the 
> images published, despite the access and the making of the images 
> having been permitted, the issue is a practical one. Who wants to be 
> sued, or have to negotiate through lawyers, after the fact? It is 
> expensive, tedious, and creates so much animosity. Having a release up 
> front eliminates that possibility, even if it is not strictly 
> necessary.
>
> So the GWA director's answer was also correct. Best answer? Get the 
> release when you make the image, when the relationship is friendly.
>

Rich's answer opens the door to a more detailed explaination.  He says 
"get the release" - he means Property Release not a Model Release.  As 
a photographer who depends on resale licensing of images in my library, 
I must have written permission to publish photos taken on private 
property.  I don't make any assumptions about what a homeowner thinks I 
am going to do with the photos.  Some homeowners restrict use to one 
story, some give me blanket permission but I explain my release and 
have then sign it for my own and my publisher's protection.

While the law is somewhat vague regarding "fair use" of likenesses of 
property depicted in a photograph, there are litigations galore.   An 
artists sculpture, an architect's design, a plant collector's rare 
plant are all property that is protected from exploitation.  What 
defines that exploitation is not common sense but an owner's 
willingness to use the law to protect their privacy;  sometimes 
selfishly and without merit, but that is the way it is.  A Property 
Release protects everyone.

As a practical matter,  if I were an assignment writer for a 
publication and not  concerned about reselling my stories, a verbal OK 
from the owner would satisfy my legal concerns, but in general, I think 
it professional to explain my purpose and intentions of how I want to 
use photos.  Most all the professional garden photographers I know have 
had a least one instance where an owner has changed their mind or 
misunderstood how photos might be used (or re-used) and then either 
complained to our publishers or other garden owners about our behavior, 
fairly or not.

A besmirched reputation is not easily recovered so I would urge all 
members of GWA (not that everyone on this list is a member) that for 
the professionalism of our industry we use best business practices and 
get Property Releases for any photos taken on private property.  Photos 
on public property may be used for editorial (non commercial) use, 
assuming one did not trespass to get to the property, but let those of 
us in the media respect the privacy wishes of property owners.

Saxon Holt
Saxon Holt Photography
Gardens and Ornamental Horticulture
www.saxonholt.com
Library  - www.photobotanic.com
415.898.8880

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