Has there ever been a ruling on the necessity / legality of a property release for non-trademarked property?

Question

While this is a legal question, it's an area often broached by photographers: that of the property release. An individual's right of publicity is widely recognized, and obtaining model releases from recognizable individuals in photos used for commercial purposes is accepted as common practice.

That said, I've heard that the notion of needing a property release to utilize images of private property is one that has not been tested in court in the United States. Are there any examples of companies or individuals which have gone to court and received a ruling indicating whether a property release is needed?

(note: I realize that if a building/property has a formal trademark, such as the Transamerica Building, this becomes a trademark infringement issue - I'm concerned here with a general property release issue)

Answer 1

I've never seen a legal precedent in discussions of this topic on any photographic forums, as you say it's something that comes up a lot. The consensus seems to be that property doesn't have the same right to privacy for publicity that people do, with possible exceptions of trademarked items, artwork and the like.

Gray areas I've seen mentioned would be photographing a race horse and using the image commercially, or photographing a well-known person's home or other property and using the image in way that is defamatory.

According to the article below, no case law is known that covers this issue. That doesn't mean there won't be law suits, some dropped or settled out of court, but as for any rulings, I'm not aware of any

http://asmp.org/tutorials/using-property-releases.html

Answer 2

The answer to your question is sort of... At least as far as I can tell. Here's a synopsis of a legal case in the United States related to this concept with the rulings of interest really boiling down to that if the image is taken on the property, then trespass may apply, otherwise the owner may well be out of luck. However, with tresspass, the photographer still has the image and can sell it as that seems to be the outcome of mediation.

Now, none of that is to say that there's a well established body of case law here, so tread carefully as the result may not apply in other states. :)