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.
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”.
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.