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By Richard Weisgrau and Victor S. Perlman
The whole subject of property releases is filled with urban legend, assumption and myth, along with a bit of actual law. As you know, using a person’s likeness for trade or advertising purposes requires a model release. That is because a person has a reputation to protect, a right of privacy and (in some states) a right of publicity. Property has none of these rights. So why should you go to the trouble to get a release?
It’s a good question, but one that requires a complicated answer. ASMP has never seen a statute or a legal case that requires a release for property. The recommendation that you get one is based upon two legal theories.
Below, we use a house as the property in question. Remember that the theories can apply to property other than real estate, such as pets, cars, works of art and other personal property.
Association. The first theory is that a person’s identity might be connected to the property. Take a picture of a house and use it in an article about drug users, and the owner might get angry enough to sue. Why? because everyone on the block knows whose house it is, and, since the house is not actually connected with drugs, the image was used out of context and paints the owner in a bad light. If the owner sees the use of the image as defamation of character, a lawsuit might be the response.
Conversion. The second theory is that there is an offense called conversion, which means that you used another’s property to your own personal gain without the owner’s permission. It is a bit like copyright infringement, which covers intangible property, except it covers tangible property. If I rent out your house while you are away without your permission, I have converted it to my personal gain. That is conversion. The question is this: Is it conversion if I rent out a picture of your house for an advertisement without your permission? The picture of your house is not your tangible property. Is the photo of the house the equivalent of the house (at least for these purposes)?
We know of no case that has ever settled those kinds of questions. ASMP advises that property releases be acquired whenever possible because we don’t want to see you be the test case.
What if you get the release to use a photo of a house, and then ownership changes hands? Is the release still binding? We would say probably yes, as you got it from the proper owner at the time. If ownership changes, that proper owner is (at least theoretically) obligated to tell the prospective new owner of the permission he gave you before the sale is made, so the prospective buyer can decide if he wants to purchase under that condition. Does this mean that a new owner won’t sue you? By no means does it mean that. What it means is that you have a defense, if you are sued. The courts will sort it out. The problem is that there is no case law on these situations, so the courts will have to make it up as they go along. That is the most expensive kind of litigation that there is — fighting over how to apply law when it has not been applied before.
If you want to make sure that your release will protect you in spite of changes in ownership, you have to do whatever the law of the state in which the property is located requires to have the release “run with the land.” While that varies from state to state, typically it means that the release should:
State that it binds the owner and his heirs, successors and assigns.
Be signed in front of a notary public and contain the sort of legal “acknowledgment” that notaries typically sign and seal (“On this ___ day of ___, 20__, before me, a Notary Public for the State of ___, the undersigned officer, personally appeared ____, known or satisfactorily proven to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged that he executed the same for the purposes therein contained. In Witness Whereof, I have hereunto set my hand and notarial seal…”)
Be recorded in the same place where you would record a deed to that property.
Just having the release state that it “binds the owner and his heirs, successors and assigns” will, as a practical matter, probably be enough to convince most subsequent owners to go away, and might even be enough to protect you in a lawsuit. That is why you will find this language as the last sentence in ASMP’s property release form.
ASMP’s recommended property release form is available to members. It supports customizable text that you may print out and use directly. Or, if you need better control over page formatting, you can copy it into a word processor.
In some cases, the logos, props, buildings, etc. that appear in your photos (even as background matter) are protected under trademark law. See the FAQs for some further information about trademark and trade dress. ASMP members can also read this advice on trademarks in photos.
Finally, be aware that there can also be copyright issues regarding photos of buildings, statues and other works of art. We discuss these issues in our Copyright Tutorial.