Legal Question

[cletusjermal]

I am going to go to Luray Caverns today. Luray Caverns > Home The caverns is privately owned. I looked online and couldnt find anything really about selling photos in this situation. Does anyone know about selling photos of privately owned caverns that are open to the public. I know if you take pics of private property from say the road you can sell it but what about in this where the pic is taken on private property of the property.

 

[Overread35]

Phone up and ask - depending on the size of the setup try to speak to someone other than the receptionist if its a bigger setup or part of some chain/group (because in such setups the person answering the phone often has little to no power past reading out the official company stance on matters).

Generally speaking many places open to the public will have a terms of entry and your purchase of the ticket is your agreement to those terms. Often (though not always) they will have a specific clause in there regarding photographic work and/or commercial works undertaken at their site.

The photos you take will be copyright to you - you will own them, however chances are they will prohibit/limit the commercial use of photos. This could be anything from you just needing the say so through to needing to pay a fixed fee or royalties - they might also flat out refuse. It all depends on the company and also how you present yourself to them.

 

[cletusjermal]

Phone up and ask - depending on the size of the setup try to speak to someone other than the receptionist if its a bigger setup or part of some chain/group (because in such setups the person answering the phone often has little to no power past reading out the official company stance on matters).

Generally speaking many places open to the public will have a terms of entry and your purchase of the ticket is your agreement to those terms. Often (though not always) they will have a specific clause in there regarding photographic work and/or commercial works undertaken at their site.

The photos you take will be copyright to you - you will own them, however chances are they will prohibit/limit the commercial use of photos. This could be anything from you just needing the say so through to needing to pay a fixed fee or royalties - they might also flat out refuse. It all depends on the company and also how you present yourself to them.

I tried to call and talk to someone but the only person there was the receptionist. I asked him and he thought they didnt let people sell the photos. Ill ask the manager or see if the owners are there when i go down there.

 

[KmH]

What do you mean exactly when you say 'selling photos'.

If you're not talking about mass distribution of the photos, the property owner has no say, if they let you make the photos in the first place.

Selling individual photos as art is an editorial use, not a commercial use. A release protects the publisher of a photo. Selling individual prints isn't publishing, so as the photographer, you don't need a release.
For the majority of editorial usages, even the publisher doesn't need a property release.

From Dan Heller's book about releases, Part 6, Dealing with Photos of Property:

Photographers and publishers alike have naively assumed that photos of property of various kinds require releases. But this is mostly due to a slowly evolving trend by trademark holders to convince them of this... by overly asserting infringement claims....because they realize it gives them more control than they are legally entitiled to... The more this cycle continues the more misinformation perpetuates.

The book title is: A Digital Photographers Guide to Model Releases but it also covers property release and licensing.

Anyone selling photos should have this book, or a qualified attorney on retainer. :thumbup:

 

[MohaimenK]

Luray oh Luray. It's about hour and 10 mins from my house. Been there maybe 20 times?? You can take all the pix you want but don't try to sell it. You WILL GET SUED FOR IT! They sell their products in their stores and they'll have a huge problem of you selling pics of their property. You would need permission for sure but I know they will say NO right away. Or they'll give you a phone number to someone that'll say no.

In other words, NO YOU CANNOT TAKE PIX AND SELL THEM ONLINE

 

[dcmoody23]

Wait - Would using Smugmug be considered commercial use? I'm just an amateur photographer, but the pictures are available to purchase.

 

[Overread35]

I would consider a smugmug to be mass distribution - even if you don't make the sales you're still distributing the potential sales to the masses through the site - as opposed to a one or two shot sale from say a gallery.

 

[cletusjermal]

I wonder if i got some good pics if they would buy them from me to sell.

 

[MohaimenK]

Wait - Would using Smugmug be considered commercial use? I'm just an amateur photographer, but the pictures are available to purchase.

simply put: no selling or no using to promote your business

Other than that you can put it on ur smugmug under "Luray Cavern Vacation" and show it off that way, you'll be fine.

 

[Overread35]

That will depend on their arrangement with their current photographer (if they have one regular photographer). They might be under contract with one photographer and not be willing to risk that contract for a few irregular sales - on the other hand they might be more free in accepting shots.

You'll be up against a wall however since chances are very strong that you won't be allowed a tripod in the caves which will seriously restrict your lighting chances - though if you can pull it off well or get into a good conversation/relationship with the person in charge you might be able to get further

 

[KmH]

Luray oh Luray. It's about hour and 10 mins from my house. Been there maybe 20 times?? You can take all the pix you want but don't try to sell it. You WILL GET SUED FOR IT! They sell their products in their stores and they'll have a huge problem of you selling pics of their property. You would need permission for sure but I know they will say NO right away. Or they'll give you a phone number to someone that'll say no.

In other words, NO YOU CANNOT TAKE PIX AND SELL THEM ONLINE

This is the point I was making in my post. They have no legal right to prevent you from selling photos online and replies like the above perpetuate the misinformation.

They use litigation tactics as a form of bullying, because they can afford to pay an attorney to file a baseless law suit, knowing most photographers/publishers either can't afford to fight back, or if they can afford it, lack the balls to stand up for their rights.

There is federal legislation pending in the House right now that, among other things, could stop this practice. I don't know the House HR# but the Senate version is S. 3689.

The keys are the definitions of publishing, and commercial.

As always, your best bet is to consult with an attorney trained in intellectual property and publishing law, not an online discussion forum.

 

[Rosshole]

Thanks Keith, I ordered it!

 

[LarryD]

This is a bit like taking a photo of the New York skyline and somebody saying that you can't sell your photo...

Private property gives the owner access rights, but not imaging rights..

I also think any owner is silly to pursure this.... It's free advertising that will intrigue the viewer and push them for their own visit...

 

[GooniesNeverSayDie11]

I went to Luray Caverns like 20 years ago. HAHA. I am not sure, you might want to check with a lawyer. My opinion would be, unless they prohibit photography, or unless its a trademarked image or you are using their name, then they can't really do anything about it. However, there was a case recently.....http://courses.cs.vt.edu/~cs3604/lib/Copyrights.Patents/Buchholz.poster.HTML However, the guy appealed and you can see a summary here, when they deemed that the building was not being used as a trademark...
Rock and Roll Museum May Not Be Trademark Heaven

 

[GooniesNeverSayDie11]

Here is a more in depth long reading of the case....

Court cases - 6th Circuit COA - Rock and Roll Hall of Fame and Museum v. Gentile Productions, 134 F.3d 749 (6th Cir, 1998)