ethics question

[jann1033]

came up on another forum and just wondered how anyone here feels about it...
say you go to a local park, zoo what ever that allows photography but says you need their permission to sell photos taken there. what would you do if they ignored your requests for permission( just never answered you it, didn't deny it) but you wanted to sell a photo that in way no could be identified at taken at their location( ie a close up of a rose with bokeh)

imo not really " right or wrong" but wonder what others would do, ( one post on the other place mentioned some legalities the came down to they can't really stop you for the same reason you can take a photo of a celebrity, something called public view)

just wonder about opinions here...it was pretty much split on the other forum
personally i think a rose is a rose is a rose half the time i don't know where i took it unless i go through the folder and find some hardscape i recognize so i don't see the harm.

 

[WillCAD]

I see only one major problem with your scenario - what do you tell the buyer if they ask where and when the photo was taken, or if you have legal permission to sell it, or if there are any potential legal hurdles? You'd have to lie, probably on a sales contract, which is a binding legal document.

Lies have a way of coming back to bite you later, particularly those that you write down and back up with a legal signature.

My personal code of morality sees nothing wrong with taking a pic of a nondescript flower just about anywhere and later selling the pic. However, I do have an annoyingly honest conscience, which would demand total honesty in any business dealings, and if the contract says something to the effect "by signing this I am affirming that I have complete legal ownership of the image", I would not be able to sign it in good faith if I knew I had taken the pic in a place that prohibits selling the images.

 

[ssanders79]

If the location did not bother to reply to your request and the image does identify the location then I would not have a problem selling the photo. I would caution that it would be wise not to sell it as Rose at [Location Name] as this would indicate you are using the name of the location to add value to your photograph.

As long as it is not a super rare rose only found in a few locations then you should be able to easily argue that it was shot in your "friend's" garden.

 

[MICKEY88]

imo not really " right or wrong" but wonder what others would do, ( one post on the other place mentioned some legalities the came down to they can't really stop you for the same reason you can take a photo of a celebrity, something called public view)

.

public view doesn't give you legal right to sell any photo,,, and since it's on private property and you were on that property it wouldn't apply anyway..

public view refers to the following,,

a property owner can stop you from taking pics of something on their property if you are standing on their property, if you stand across the street or any where off of their property they can not stop you from taking the picture, but you still heve no legal right to sell it

 

[MICKEY88]

However, I do have an annoyingly honest conscience, which would demand total honesty in any business dealings, and if the contract says something to the effect "by signing this I am affirming that I have complete legal ownership of the image", I would not be able to sign it in good faith if I knew I had taken the pic in a place that prohibits selling the images.

but you would have complete legal ownership of the image, you hold the copyright,,however you don't neccessarily have the right to sell or profit from the image..

 

[fitzperry]

If the location did not bother to reply to your request and the image does identify the location then I would not have a problem selling the photo. I would caution that it would be wise not to sell it as Rose at [Location Name] as this would indicate you are using the name of the location to add value to your photograph.

As long as it is not a super rare rose only found in a few locations then you should be able to easily argue that it was shot in your "friend's" garden.

I agree with Willcad--nothing unethical about it until you find yourself lying about where it was taken. I wouldn't do that.

 

[YesDear]

Let me relay an actual series of events I heard this past weekend at a photography class. It does not deal with the ethical issue, but may give some insight.

Photographer out one weekend traveling in a rural area. They take great shot of horses in a field. They post it on a smugmug type site. A cell company contacts them and says they saw the picture and would love to use it on a billboard campaign and pay a decent fee for the use. Photographer agrees. The billboards go up and the owner of the land goes to the cell company and says he never gaver permission to shoot his land and horses. He says glad to give them permission if they will provie free cell service to him and his family for life. Cell company takes down all billboards and asks the photographer for the money back!

To me the word identifiable for the ethical question would be important. If I take a picture of a blade of grass would the permission apply. I am not an attorney but I believe reasonable expectations for the permission is the use of any likeness, etc unique to that zoo. The elephants no, the hay they eat, who cares as long as it is not identifiable as coming from the zoo. Do I have to have permission to take a picture of the sky located over the zoo??

 

[WillCAD]

Let me be clear - I don't think that the hypothetical rose pic situation that the OP posed is a huge issue, and I wouldn't call for someone to be fined or jailed or burned at the stake if they did it.

But selling a pic that you know you have no legal right to sell, even if you're SURE you will get away with it, is still an unethical action, because it involves dishonesty.

It's a victimless crime; it hurts nobody, costs the zoo nothing, earns a few bucks for the photographer, and gets the buyer a nice photo to use in their publication. But it still involves a lie, because during the sale you will either have to say or imply that you have the legal right to sell the photo. You might even have to sign a contract saying that you have the legal right to sell the photo.

If the location did not bother to reply to your request and the image does identify the location then I would not have a problem selling the photo. I would caution that it would be wise not to sell it as Rose at [Location Name] as this would indicate you are using the name of the location to add value to your photograph.

As long as it is not a super rare rose only found in a few locations then you should be able to easily argue that it was shot in your "friend's" garden.

I figure it this way:

Anything that involves lying, misleading, misrepresenting, false implication, lying by omission, or any other form of dishonesty, is inherently unethical behavior. Telling the buyer that you "shot it in a friends garden" when you know that you didn't is a blatant lie. Not volunteering the actual location of the shot (because you know it would lead to additional questions that might blow the sale) is a lie of omission.

And "well, it's ethical as long as I am CERTAIN I can get away with it (because there's no possible way for them to figure out that I lied)!" is no excuse; you're still telling a lie, which makes it an unethical transaction.

To me the word identifiable for the ethical question would be important. If I take a picture of a blade of grass would the permission apply. I am not an attorney but I believe reasonable expectations for the permission is the use of any likeness, etc unique to that zoo. The elephants no, the hay they eat, who cares as long as it is not identifiable as coming from the zoo. Do I have to have permission to take a picture of the sky located over the zoo??

Whether a pic is identifiable or not makes no difference to the ethicality (is that a word?) of the transaction. If you lie to sell the pic, you're being unethical, whether you get away with it or not.

Identifiability of the pic is only important to whether you will get caught in your lie. But telling a lie and getting away with it is no more ethical a behavior than telling a lie and getting caught; it simply has no external consequences.

 

[zackiedawg]

Tough argument...in spirit and in practice I agree with everything Willcad is saying. However, I do wonder if there truly is any illegality to selling a photo of a generic subject with no identifyable tie to the place it was taken. Not that you can get away with it...but that it truly may not be in any way legal for that private property owner to 'own' the rights to photograph something like that...therefore making the photographer morally and ethically right to sell it. I don't know this for sure, but I would certainly be willing to check into it if I were that photographer in question.

One would have to know what the private property has legal claim to when it comes to prohibiting sale of photographs taken on their property without their permission. It is quite possible they only can lay claim to photographs of something unique to their property, specifically set up by or built by them, or something they purchased for profit in the first place. I truly don't think that they can 'own' photographs of grass, flowers, sky, tree bark, and other naturally occurring fauna and flora common and indigenous to that area...therefore those particular subjects wouldn't fall under the permissibility rules and would be free for the photographer to sell with all ethics intact.

In the end, unless I knew the answer for sure, I'd probably act as Willcad would - I would not sell the photo only because there is still a question in my mind as to whether or not it was legal to do so, and I wouldn't be willing to lie about the photo if asked. But I would definitely research and consult legal advice as to whether or not I could sell the photo without the permission of the private property owner.

 

[jann1033]

Let me relay an actual series of events I heard this past weekend at a photography class. It does not deal with the ethical issue, but may give some insight.

Photographer out one weekend traveling in a rural area. They take great shot of horses in a field. They post it on a smugmug type site. A cell company contacts them and says they saw the picture and would love to use it on a billboard campaign and pay a decent fee for the use. Photographer agrees. The billboards go up and the owner of the land goes to the cell company and says he never gaver permission to shoot his land and horses. He says glad to give them permission if they will provie free cell service to him and his family for life. Cell company takes down all billboards and asks the photographer for the money back!

To me the word identifiable for the ethical question would be important. If I take a picture of a blade of grass would the permission apply. I am not an attorney but I believe reasonable expectations for the permission is the use of any likeness, etc unique to that zoo. The elephants no, the hay they eat, who cares as long as it is not identifiable as coming from the zoo. Do I have to have permission to take a picture of the sky located over the zoo??

could be unique to NC but according to this( and a few other similar documents i have looked up since this came up), they had no right to do that( the land owner) and didn't have a leg to stand on...truthfully sounds like an urban legend but who knows //www.photosecrets.com/law.take.html

i can't really conceive of ever having to lie about it, maybe someone would ask where and when but i kind of doubt it. we are talking about an photo without any recognizable reference point so why would they ask where it was taken? if it was something like a large company who maybe just had a general contract that asked that, you tell them. then it's up to them to use it or not.

as far as having a legal right to sell it, you still own the photo no matter where you took it. i would guess most contracts ask if you legally own the photo for copyright matters which you still do. ( unless you took it under contract like the obama photographer )

actually i wonder if the identifiability ( figured i'd just make that word up) is a very important point....that's the determination on if you need a model release or not so wondering how they could apply a stricter standard to something that isn't even a trademark/human

 

[jann1033]

public view doesn't give you legal right to sell any photo,,, and since it's on private property and you were on that property it wouldn't apply anyway..

public view refers to the following,,

a property owner can stop you from taking pics of something on their property if you are standing on their property, if you stand across the street or any where off of their property they can not stop you from taking the picture, but you still heve no legal right to sell it

actually i haven't found any place that says you couldn't sell it if taken on public property ( whether the photo is of public or private property didn't make any difference) unless it invades someone's privacy you can sell it( ie they are doing something they normally would expect to be private, one eg given was someone walking down the street vs taking a shot of someone's atm pin, or you need an abnormally long lens to get it something like that, or it's a photo of the inside of the house through a window, something similar, so would not apply to horses in a field, a flower in the garden).the articles i looked up also said on private property if it is open to public use( they mentioned such as a mall)they can tell you to leave but you still can publish any photos taken . they could sue you for trespassing if you came back but unless the photos fit the above you could still sell them.http://www.usatoday.com/tech/columnist/andrewkantor/2005-12-29-camera-laws_x.htm

the "public display" i mentioned in the op was that anything not exclusive to a particular venue, was considered public no matter where it was.( the poster referenced a supreme court decision) ie a photo of a bear in any zoo=public display, ok to take photo of, vs a bear doing a trick exclusive of a zoo, the trick may be considered copyrighted or maybe a trademark( if it's a private venue, didn't apply to public/government or non profit zoo due to a difference in copyright laws with them, i am guessing due to how could they claim it was detrimental to their "income" so it would be fair use ) so you might not be able to sell a photo of it. i thought of disney characters or icons as similar to that.

a few articles did mention the fact of payment to enter a private venuecould determine what you could or could not sell as they could disallow photography since that infringes on their ability to make money. supposedly your photos are so great no need for others to pay to see the real thing once they see your photos( )but if they allow it under some circumstances not sure how that would be interpreted. eg the place i take most of my flower photos is paid non profit. the only stipulation they have is you have to notify them if you want to do a magazine or similar spread (and not sure about weddings, you can rent the place for weddings but don't remember if there is an additional charge to just take photos there but iirc there is not, just the normal admittance fee but i'd have to look that up again to be sure) but i know the botanical garden in Cleveland says you need permission to sell them( and then doesn't mention what you can sell) and charges a fee for shoots like mags. but then again not sure who owns the cleveland one, maybe it's private

 

[YesDear]

Let me clarify one thing. I phrased one thing wrong in my story. The owner of the land did not challenge the taking of the picture, he challenged the using of the image of his property for commercial purpose. Sorry.

I do not believe the story was from an urban legend. It came from a nationally known photographer who was talking about model or property releases and the need for them.

Different media, but I had a client once that had produced a wonderful documentary about illegal export of exotic animals from Africa. He was trying to sell it to National Geographic. They would not buy the film unless he had model releases for everyone in the film. Of course he did not. He then had to purchase, at a very hefty price I would say, libel and slander coverage naming National Geographic to the coverage.

 

[jann1033]

Let me clarify one thing. I phrased one thing wrong in my story. The owner of the land did not challenge the taking of the picture, he challenged the using of the image of his property for commercial purpose. Sorry.

I do not believe the story was from an urban legend. It came from a nationally known photographer who was talking about model or property releases and the need for them.

Different media, but I had a client once that had produced a wonderful documentary about illegal export of exotic animals from Africa. He was trying to sell it to National Geographic. They would not buy the film unless he had model releases for everyone in the film. Of course he did not. He then had to purchase, at a very hefty price I would say, libel and slander coverage naming National Geographic to the coverage.

the national geo i can understand for a couple reasons, many of the articles i read mentioned attaching someone to a photo that could defame their character which being in a film about illegal anything would easily do, plus the fact you would need a release to show them anyway if it were a recognizable photo
but evidently property is different

here's a recent decision in Pa where google won the case, they had photographed someone's house for google earth that was on a private drive and not easily seen from public property and wonhttp://news.cnet.com/8301-1023_3-10166532-93.html kind of humorous due to the fact it ended up the newspaper published a photo of their home while reporting about the suit so they ended up with more photos published than they would have if they had just ignored the google earth
here is an article on property release forms and why to use them...i kind of wonder if the google decision might have some affect on them . http://www.asmp.org/commerce/legal_article_001.php i am also thinking this could be the reasoning behind getting permission behind the rose type photo, it's basically a property release "just in case" they decide to sue you. i think it was another article from the same source that mentioned it can be different if you sell a photo that includes the property( as long as it doesn't put them in a bad light such as a series on articles bought with illegal got gains) vs selling it for use in advertising or put in on a mug or t shirt, which is strange. don't really understand the rational behind the mug vs a print

the reason i questioned the urban legend-ness of the account you quoted was the "free cell phone for life"...just reminded me of the "mrs fields" $4 million cookie recipe and Kramer's "free coffee for life" i would think a true suit would ask for a specific $$ amount of damages although I've never been involved in a lawsuit like that so maybe not...

it's an interesting subject though( at least to me) and some of it seems ambiguous at best so it's probably "an ounce of prevention" deal.

 

[JR6ooo4]

I am with WILLCAD. There should be no questions in this thread as to identifiability. The photographer knows exactly where it was taken.

It is not a matter of whether you will get caught, or how immense will the damages be.

Blurring the line only results in Madoff's, mortgage scandals, and then to people in careers of which we do not speak.

Mikeeee

 

[MICKEY88]

as far as having a legal right to sell it, you still own the photo no matter where you took it. i would guess most contracts ask if you legally own the photo for copyright matters which you still do. ( unless you took it under contract like the obama photographer )

any experienced/knowledgeable company will ask for 2 things, a copyright release and a model or property release,

that way whether or not the photographer has legal right to sell photo, the business is covered if anyone sues for the use of the photo

 

[jann1033]

I am with WILLCAD. There should be no questions in this thread as to identifiability. The photographer knows exactly where it was taken.

It is not a matter of whether you will get caught, or how immense will the damages be.

Blurring the line only results in Madoff's, mortgage scandals, and then to people in careers of which we do not speak.

Mikeeee

at least in my case not necessarily true, i have a folder i put most flower files into with only the dates(easily 100s, since i went digital)so to say this red rose is from one place and this red rose is from another place is not really possible without a lot of speculation on my part unless there is some photo from the same date with some hardscape i recognize. i can guess cause i know where i usually take photos, but couldn't prove it. and likely that exact flower isn't still there from yrs ago

and from all the legal articles I could find the legality of the op situation is speculative at best . it certainly wouldn't fit any of the criteria for illegal use( ie defamation/trademark) and is way over in the untried waters of what is tangible and what is intangible, which is of course what causes the problem and makes it imo different from something truly "illegal" like the cases you mentioned. that knife cuts both ways, is it right for someone to claim they can control/own your work when the law doesn't give them the right to do so?

 

[manning]

Let me relay an actual series of events I heard this past weekend at a photography class. It does not deal with the ethical issue, but may give some insight.

Photographer out one weekend traveling in a rural area. They take great shot of horses in a field. They post it on a smugmug type site. A cell company contacts them and says they saw the picture and would love to use it on a billboard campaign and pay a decent fee for the use. Photographer agrees. The billboards go up and the owner of the land goes to the cell company and says he never gaver permission to shoot his land and horses. He says glad to give them permission if they will provie free cell service to him and his family for life. Cell company takes down all billboards and asks the photographer for the money back!

To me the word identifiable for the ethical question would be important. If I take a picture of a blade of grass would the permission apply. I am not an attorney but I believe reasonable expectations for the permission is the use of any likeness, etc unique to that zoo. The elephants no, the hay they eat, who cares as long as it is not identifiable as coming from the zoo. Do I have to have permission to take a picture of the sky located over the zoo??

Where was he standing when he took the picture??

 

[MICKEY88]

could be unique to NC but according to this( and a few other similar documents i have looked up since this came up), they had no right to do that( the land owner) and didn't have a leg to stand on...truthfully sounds like an urban legend but who knows //www.photosecrets.com/law.take.html

not saying you are wrong, but this disclaimer on the site you list would deter me from using their info...

Disclaimer: I am not a lawyer and this is not legal advice. Use at your own risk. The following is my opinion but it may be wrong, misleading or inaccurate -- do not rely on anything written here. Laws vary by province and change over time. If you know of an error, please let me know. If you have a legal question, please consult a lawyer.

plus the fact that he states the laws vary by province, leads me to believe he is not from the USA and is not talking about US laws...

 

[jann1033]

i looked up about a dozen articles and all said the same general things. the laws do vary by state which one listed. the few states i looked up, the cases were in favor of the photo usually but dealt with invasion of a person's privacy( ie one mentioned some woman in a playboy article who objected to a candid photo of her kids published in that article, the guy who took it was in the street and they sided with him) rather than property . most states didn't have much in the way of tried cases.

 

[MICKEY88]

i looked up about a dozen articles and all said the same general things. the laws do vary by state which one listed. the couple states i looked up were in favor of the photo usually and but most just didn't have much in the way of tried cases.

on several pro boards that I frequent, the general consensus is, that even though you may be within your legal rights to use a photo, if there is a grey area, do you have the time or money to fight for that right in court.

the other thing to consider, is whether or not a certain type of lawsuit would be negative publicity for your business