16 Nov 2007 Protected Property

This post addresses legal issues related to selling photos of protected properties. While all care has been taken to ensure the accuracy of the information, the sources used – primarily the Internet – are not a substitute for professional legal advice. You’ve been warned. Eiffel Tower at night, Yanik Chauvin

There are properties around the world that are protected by copyright, trademark, or access agreement. This means photos or illustrations of the property cannot be used for commercial use, which obviously includes microstock. In some circumstances it can also extend to editorial use, making it difficult to know when and how photos of the property can be used, if at all.

What Properties Are Protected?

While ‘protected property’ covers a variety of objects, including registered logos, insignias and currency, they are more easily understood. So this article is focussed on the more complex issue of buildings, monuments and landmarks. This is where more microstock contributors experience unexpected rejections for property protection reasons.

There are some well known examples of protected property, but knowing what is protected usually requires research. It’s a good idea to do this research before you shoot, prepare and upload your photos. Here are some useful guidelines:

  • Any military property is likely protected
  • PACA have an updated special release list of properties known to be problematic when shown photographically. PACA officially holds no position on the state of protection of properties on the list, but advises photographers to seek their own legal advice when shooting the properties.
  • ImageCatalog have a resource listing trademark and copyright protected subjects which they do not accept as submissions. They state that the list is not exhaustive and responsibility for ensuring properties aren’t protected remains with their contributing photographers.

Microstock agencies each have their own internal lists, usually based on public resources such as the PACA list. None make their lists publicly available as the work required in building and maintain makes them a competitive advantage. ImageCatalog are the generous exception to the rule.

The Rules Can Be Complicated

Many protected properties have complex rules. For example, photos of the Eiffel Tower in Paris are acceptable if taken during the day. The light design is copyright, so photos taken at night (as in the photo at the top of this article) are not acceptable for commercial use.

British Royal Residences, including Buckingham Palace, Windsor Castle and Hampton Court Palace, are all protected properties. However, only for photos taken from within the grounds. If you’re standing on public property when you shoot, there are no restrictions on selling your photos. See the example photo below, taken from within Windsor Castle.

These complications reinforce the need to research the property you’re considering shooting for stock in advance.

Can I Sell Them With An Editorial License?

Generally, yes. You can sell photos of most protected properties through Dreamstime and Shutterstock, who both support editorial license sales. Be sure to indicate that it’s for an editorial license when you’re submitting.

Some properties are also protected against editorial use. Again, the generally accepted advice is to seek appropriate legal advice before contributing. The properties in the photos used in this post are examples of properties that cannot be used for commercial purposes, but are acceptable for editorial use.

What If It’s Just A Part Of My Photo?

If the protected property isn’t the primary subject of the photo, you are usually permitted to sell the photo with a Royalty Free license. Few photos of the New York skyline don’t include the Empire State Building, Chrysler Building, Rockefeller Center, and many more protected properties. Likewise, it’s difficult to shoot the London skyline without including the London Eye and ‘The Gherkin’ (see photos below), which are also both protected properties.

The two photos of the London Eye below illustrate this point. The photo on the left is only available on Shutterstock with an editorial license, as it’s a photo “of the London Eye”. The photo to the right is available for commercial use with a Royalty Free license from iStockphoto as it’s a photo “of London that includes the London Eye”.

London Eye Stock Photo - Editorial License

Snowy Day in London, Cesar Soriano

Who’s Responsible: Buyer, Agency, or Photographer?

When the owner or trustee of a copyright or trademark protected property becomes aware of an unauthorized use of a photo featuring their property, they can sue for damages. But who is liable?

Unfortunately, the answer is usually the photographer. Most microstock agencies include clauses in their contributor agreement stipulating that the contributing photographer is liable for any infringements that result from use of their photos.

Many microstock contributors are upset when an agency rejects their photos for reasons of property protection. However, they may not know that the agency is protecting them from possible legal action. They’re also protecting themselves from the hassle of being involved in the case, even if they’re not directly liable.

The Usual Resolution

Taking legal action is costly and risky, so lawsuits from owners or trustees of protected property aren’t common. Instead, they cooperate with agencies and photographers to ensure everybody knows about the protected status of their property. This is usually as simple as a request that the relevant photos be removed from sale.

I took some photos of the Shrine of Remembrance in my hometown Melbourne, Australia. I had them online with each microstock agency for some time, and they sold a modest amount. I received an email from iStockphoto explaining that many of the photos had been removed due to protected property reasons.

The Shrine had contacted iStockphoto to notify them that their building was a protected property. iStockphoto complied with the request and removed the photos where the Shrine was the primary subject. Well, almost all. See the example photos below.

This is the most common resolution. It’s easier for protected property owners to contact a handful of agencies than all the photographers.

Many Photos Get Through

The photos below are all examples of protected property that have been contributed and approved at microstock agencies and are available for purchase with a Royalty Free license – click the photos to see the detail page at the agency. That these protected property photos are available doesn’t necessarily imply negligent or absent due diligence, but it does show that not all microstock agencies protect themselves and their contributors to the same degree. It is also “possible” that the photographers obtained a property release.

Sydney Opera House, Chee-Onn Leong

Shrine of Remembrance in Melbourne, Daniel Gustavsson

Inside Windsor Castle, Sam Knopfler

The Gherkin, Dennis Owusu-Ansah

Chrysler Building, Jeff Gynane

Louvre Pryamid, Julian Barkway

Sears Tower, Kasia Biel

  • Ellen Boughn
    Posted at 17:38h, 16 November Reply

    I recommend that anyone wishing to gain more knowledge about the legal view of property releases purchase ‘The Professional Photographer’s Legal Handbook” by Nancy Wolff. Pages 170-172 cover the topic very well. But remember that just because the legal position is that the building owners don’t have a legal leg to stand on in certain cases , doesn’t mean that it is worth posting the image due to the high cost of getting rid of a lawsuit, winnable or not.

  • Stephen Strathdee
    Posted at 23:42h, 16 November Reply

    Very informative as usual Lee – thanks once again.

    I’m not well versed in legal matters, but I can see how the image vendor might be held more accountable than the supplier if it came down to litigation – they were the ones who accepted and sold the image, and have much deeper pockets than the photographer. iStockphoto certainly recognized this in your case, as did the “Shrine people”, who didn’t even bother to contact you about it.

    My only legal education has been in contract law, and I have my doubts as to the enforceability of the liability clause you mentioned. But then again, I’m a photographer, not a lawyer …

    • John Doe
      Posted at 02:35h, 05 January Reply

      It’s called an indemnity clause and it is a very standard clause in contract law. Rest assured that they are enforced in the US.

  • MarkFGD
    Posted at 22:34h, 17 November Reply

    Thanks for a fantastic and very useful article. What I failed to understand about property licences when I first started submitting to microstock is they don’t just cover buildings and trademarks. I’ve had images bomb for leaving my bank’s address on my own cheque book and tiny hand-stamped numbering on a street sign. I’m still a bit confused as to when a property licence is required but this article certainly makes things a little clearer. Thanks.

  • john
    Posted at 14:36h, 29 November Reply

    this paragraph below and state of the market is a bit unfortunate bc it means that there are a lot of different interpretations of the rules out there and more gray area which hurts us everyone in the end.

    “Microstock agencies each have their own internal lists, usually based on public resources such as the PACA list. None make their lists publicly available as the work required in building and maintain makes them a competitive advantage. ImageCatalog are the generous exception to the rule.”

    I wish there was a “go to” standard document that outlined all the properties (maybe a wiki) that could be at issue or when restrictions apply like in the case of Buckingham palace. It would take the guessing and research time down for everyone including the photographers. I understand why agencies/companies dont bc of the research time it takes to gather all the info and the competitive advantage like you talked about but other than that I’m not sure what they could do.

    Thanks to PACA and ImageCatalog for trying to improve the situation by making things more transparent and opening up. I can tell you that we will make this as transparent as possible and will throw out the “competitive advantage” relating to this issue when we do this. We are more concerned w protecting and educating our members on the marketplace in general and w the influx of new photographers a standard has to be set.. Its for the sake of the whole industry to make things more transparent bc everyone is indirectly hurt (or helped by others missteps). I’m in favor of a wiki type tool that we could all add to and update. anyone else think that is a good idea.

  • Iain
    Posted at 17:25h, 26 May Reply

    Surely the best solution would be for the Microstock websites to acquire ‘blanket releases’ for major landmark buildings and pay them an annual fee (say $0.01 per download).

    Shutterstock for example accept any picture of a building as commercial stock so long as there are no trade marks present and no recognisable people if no model release. In my experience Istockphoto have only rejected the London Eye and the Gherkin on the basis of this issue (even if its barely visible).

    Stockxpert on the other hand won’t accept ANY photographs of modern buildings without a property release.

    In the UK at least, as I understand it a property release is generally not needed for photos taken in a public place. If I were to acquire one for every building photograph I shoot for microstock just for the sake of being accepted on 3-4 websites even if it was signed without a fee being charged (probably unlikely), many of the images would take a couple of years if ever to break even on the cost of processing the release (paper, postage, sending them a cd of the images for their own royalty free use, etc)

    • Lee Torrens
      Posted at 18:57h, 26 May Reply

      Iain, the distinction is whether the building is the primary subject of the photo or not. Property releases are not required for every building in a photo of a skyline as you describe. Just as well for us!


  • Microstock Property Release Policy | My Stock Photography
    Posted at 10:13h, 11 May Reply

    […] have a look to an old but still useful post by Lee Torrens, Protected Property on MicrostockDiaries. var a2a_config = a2a_config || {}; a2a_localize = { Share: "Share", Save: […]

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