So, I had an interesting experience this past week. I thought I'd share what I learned and see if there was more wisdom from the group at large. Obviously, I am not a lawyer and this does not constitute official legal advice.
I was invited to a private girl's college to photograph a play by the director. It was my first time to the school, and I saw they had some beautiful architecture. When I was done, I took a few photographs and posted them on Facebook. They were shared with the school alumnae page, and immediately there were requests for prints and more photos. After a quick check of their policy, it looked like it was safe to sell prints of the photos as long as I didn't include their name or any of their trademarked symbols, so I went ahead and created a smugmug account and made them available for sale.
Johnson Hall by Ron Yorgason, on Flickr
There were requests on facebook for more images, and to get shots of the grand staircase inside their main building. I wanted to make sure this was permitted, so I contacted the school, showed them my work, and asked if I needed any special permission to go inside and take photos. This is what I was told:
[This] is a private college, therefore our campus is not open to vendors coming on campus without prior permission. When photographers are hired to photograph an event, such as a theater production, permission has not been granted to take photos of our campus or persons on our campus unless prior arrangement has been made through the Marketing or Events office.
Regarding the sale of any image that represents the college -- our iconic buildings (interior and exterior), fountains and other areas on our campus are licensed trademarks. All vendors must have a license from our licensing agency in order to sell any image of the college. We ask that you remove the photos from your website until you have become a licensed vendor of the college.
There are several issues at play here that I've been researching, to see if I was really in the wrong here. The easiest one to remove was copyright. They didn't make any claim to copyright in their email, but it came up in my research. In the US, architecture was permitted to by copyrighted starting Dec 1, 1990. Any buildings built after this time could theoretically make a copyright claim, but not if the building was visible from public spaces. The buildings on this campus are 70+ years old, so that wasn't an issue.
The next issue was one of trademark. Their website specifically says:
[Our] marks are any and all names, trademarks, logos, insignias, seals, designs, symbols or any combination of these that has come to be associated with [the school].
What is clearly forbidden is selling prints with the school name on it, or any symbols or marks that would specifically imply that the image is an officially sanctioned image of the school. As for the buildings themselves, if they are iconic and associated with the school, they can be trademarked. However, I should be able to use them as long as I'm not using the images to sell similar goods or services (ie, I can't use a photo of their building to promote my own school).
http://www.nolo.com/legal-encyclopedia/copyright-architectural-photos.html
In order for a trademark owner to stop you, the following would have to be true:
(1) the building would have to have an identifiable, distinctive appearance;
(2) the building would have to be publicly associated with certain goods or services;
(3) your use would have to be commercial (not editorial);
and (4) your use would have to be linked to an offer or endorsement of similar goods or services.
So far, things looked pretty good in my favor. Where things get more complicated is the case of private property. I could take photos from public land if I had a good telephoto and a clear line of sight, but it is pretty far from the road. The question is one of trespassing, and so far I don't have a good answer for that. I was specifically invited on campus to do photography,
These links have some information on a few different relevant cases:
http://aphotoeditor.com/2013/08/26/reader-question-licensing-images-shot-on-private-property/
The Food Lion case is interesting as well. People got jobs at Food Lion specifically to do an expose on how Food Lion handles food unsafely. They had permission to be at the store, but they did not have permission to photograph things. In particular, they gained permission through fraudulent pretenses. They were found guilty and charged $1 in fines.
One line that caught my attention here was:
"If you are on the property and the owner sees but doesn’t stop you from taking photos, you have implied consent to do so."
A security guard drove right by me while I was taking these photos. I wasn't asked to leave or stop taking photos. I suspect I would beat any trespass argument in court as well.
http://www.photoattorney.com/update-on-the-lawsuit-against-benjamin-ham-for-photographing-private-property/
So, I believe I am in the right, but being right does not necessarily mean I should keep selling more prints, nor that I should go back and take more pictures of their campus. For one, I've now been told that I can't take pictures without their permission. For another, I'd like to be on their good side, maybe get licensed and then be invited to take pictures of their campus on an official level. At the very least, I'd like to keep getting invited back to photograph the theatre productions.
I was invited to a private girl's college to photograph a play by the director. It was my first time to the school, and I saw they had some beautiful architecture. When I was done, I took a few photographs and posted them on Facebook. They were shared with the school alumnae page, and immediately there were requests for prints and more photos. After a quick check of their policy, it looked like it was safe to sell prints of the photos as long as I didn't include their name or any of their trademarked symbols, so I went ahead and created a smugmug account and made them available for sale.
Johnson Hall by Ron Yorgason, on Flickr
There were requests on facebook for more images, and to get shots of the grand staircase inside their main building. I wanted to make sure this was permitted, so I contacted the school, showed them my work, and asked if I needed any special permission to go inside and take photos. This is what I was told:
[This] is a private college, therefore our campus is not open to vendors coming on campus without prior permission. When photographers are hired to photograph an event, such as a theater production, permission has not been granted to take photos of our campus or persons on our campus unless prior arrangement has been made through the Marketing or Events office.
Regarding the sale of any image that represents the college -- our iconic buildings (interior and exterior), fountains and other areas on our campus are licensed trademarks. All vendors must have a license from our licensing agency in order to sell any image of the college. We ask that you remove the photos from your website until you have become a licensed vendor of the college.
There are several issues at play here that I've been researching, to see if I was really in the wrong here. The easiest one to remove was copyright. They didn't make any claim to copyright in their email, but it came up in my research. In the US, architecture was permitted to by copyrighted starting Dec 1, 1990. Any buildings built after this time could theoretically make a copyright claim, but not if the building was visible from public spaces. The buildings on this campus are 70+ years old, so that wasn't an issue.
The next issue was one of trademark. Their website specifically says:
[Our] marks are any and all names, trademarks, logos, insignias, seals, designs, symbols or any combination of these that has come to be associated with [the school].
What is clearly forbidden is selling prints with the school name on it, or any symbols or marks that would specifically imply that the image is an officially sanctioned image of the school. As for the buildings themselves, if they are iconic and associated with the school, they can be trademarked. However, I should be able to use them as long as I'm not using the images to sell similar goods or services (ie, I can't use a photo of their building to promote my own school).
http://www.nolo.com/legal-encyclopedia/copyright-architectural-photos.html
In order for a trademark owner to stop you, the following would have to be true:
(1) the building would have to have an identifiable, distinctive appearance;
(2) the building would have to be publicly associated with certain goods or services;
(3) your use would have to be commercial (not editorial);
and (4) your use would have to be linked to an offer or endorsement of similar goods or services.
So far, things looked pretty good in my favor. Where things get more complicated is the case of private property. I could take photos from public land if I had a good telephoto and a clear line of sight, but it is pretty far from the road. The question is one of trespassing, and so far I don't have a good answer for that. I was specifically invited on campus to do photography,
These links have some information on a few different relevant cases:
http://aphotoeditor.com/2013/08/26/reader-question-licensing-images-shot-on-private-property/
The Food Lion case is interesting as well. People got jobs at Food Lion specifically to do an expose on how Food Lion handles food unsafely. They had permission to be at the store, but they did not have permission to photograph things. In particular, they gained permission through fraudulent pretenses. They were found guilty and charged $1 in fines.
One line that caught my attention here was:
"If you are on the property and the owner sees but doesn’t stop you from taking photos, you have implied consent to do so."
A security guard drove right by me while I was taking these photos. I wasn't asked to leave or stop taking photos. I suspect I would beat any trespass argument in court as well.
http://www.photoattorney.com/update-on-the-lawsuit-against-benjamin-ham-for-photographing-private-property/
So, I believe I am in the right, but being right does not necessarily mean I should keep selling more prints, nor that I should go back and take more pictures of their campus. For one, I've now been told that I can't take pictures without their permission. For another, I'd like to be on their good side, maybe get licensed and then be invited to take pictures of their campus on an official level. At the very least, I'd like to keep getting invited back to photograph the theatre productions.