Should I ask a business ahead of time to take photos?

[beccab29]

I'm a blogger and I'm about to go visit Beverly Hills and while I'm there I'm going to visit many restaurants, attractions, spas, etc in order to write my own city guide for it for my blog.


Should I e-mail restaurant/business owners ahead of time if it's okay for me to take photos in the restaurant of food or atmosphere etc because I will be writing a review on it for my guide to Beverly Hills? Or should I ask when I get there? I'm afraid if I ask when I get there I will have more no's than yes's on the photos because they weren't expecting me. Let me know what you think? Thank You!

PS. Sorry I know this shouldn't be here! I posted it here without realizing it, it was an accident. I don't know how to delete this post or move it to its proper location.

 

[MOREGONE]

If doing it for your city guide, which sounds like it may be for personal gain (monetary or other) then yes you would need to get permission to use the photos.

 

[KmH]

Personal or monetary gain has little to do with it.

You would not only be wise to get permission to shoot on private property, you may also need a property release from the businesses for the shots you make inside their business so you can use them on your blog..

The applicable laws vary by state. Since California has a large movie/TV industry, California release laws are somewhat more extensive than most other states.

You really need to consult with a qualified attorney licensed in California.

If you have not gotten prior permission to make photographs, a business can demand you leave if they don't want you doing so.
If you refused to leave they could have you arrested for trespassing. Indeed, they could perform a 'citizens arrest' and detain you until the police arrive.

 

[MOREGONE]

Personal or monetary gain has little to do with it.

You would not only be wise to get permission to shoot on private property, you may also need a property release from the businesses for the shots you make inside their business so you can use them on your blog..

The applicable laws vary by state. Since California has a large movie/TV industry, California release laws are somewhat more extensive than most other states.

You really need to consult with a qualified attorney licensed in California.

If you have not gotten prior permission to make photographs, a business can demand you leave if they don't want you doing so.
If you refused to leave they could have you arrested for trespassing. Indeed, they could perform a 'citizens arrest' and detain you until the police arrive.

Wow, took it all the way to citizens arrest but think personal gain has little to do with it. LOL

Intent with pictures has lot to do with it. Think along the lines of model release for street photos. Nobody can stop you from taking pictures of them on the street, but try to sell the photo without model release and that's where it becomes an issue. Many establishments are accustom to guests taking pictures, but if they knew you intended to review them/ profit off your reviews, well then that is a whole different story.

On the flip side, possibly later down the road when you have a collection of work and following, you may partner with the establishment so they can give you the full experience for your review.

 

[Big Mike]

If you are just going to be taking quick photos with a smaller camera (probably including a small DSLR/lens combo)...you could probably get away without asking permission. And if/when they ask you to stop...then you stop or leave.

Many, many people are walking around with cameras (especially if you consider cell phone cameras)...so it's not practical anymore for places to say 'no cameras'...and even the 'no photography' is hard because people are constantly snapping pics with their phones. So as long as you don't break out a tripod or huge lens, most places probably won't cause a fuss (unless you are clearly bothering other patrons....which in L.A./Hollywood might be an issue).

The problem with asking permission...is that the automatic answer is to say no. If they say yes (because you are just shooting a plate of food for your blog)...they open themselves up to a Paparazzi shooting everyone and anything in their place. So what I would do (I'm not necessarily recommending that you do it) would be to shoot my 'personal' photos as quickly and quietly as possible. If they ask you to stop, then do so.

Of course; the proper & legal way to go, is likely listed above.

 

[Big Mike]

Nobody can stop you from taking pictures of them on the street, but try to sell the photo without model release and that's where it becomes an issue.

This has been talked about many, many times on the forum. And while I'm certainly not an expert...I think there are plenty of misconceptions.

I could take a photo of you on the street (where you didn't have a reasonable expectation of privacy)...then sell that photo, without your consent...and you wouldn't be able to do anything about it. There was a huge court case in NYC a few years back. A photographer shot an Orthodox Jewish man and turned the photo into a popular art piece. The man sued but lost.

The issue isn't so much with selling the photo, but publishing it. If it's published with certain conditions that make it fall under the 'commercial' category...then the publisher (not necessarily the photographer) could have some issues. But I'm no lawyer...I couldn't tell you the conditions....but from what I gather...it's a lot more than just a photographer selling a few (or even quite a few) prints.

 

[KmH]

Here is the case I think Mike is referring to. Nussenzweig v. DiCorcia - Wikipedia, the free encyclopedia
Selling photos is often deemed an editorial use, rather than a commercial use.

If you don't follow case law related to photography, releases, and copyright, you may not be as well informed as you would like to be.

This is a very good reference book to keep handy if you take photos with people in them - A Digital Photographer's Guide to Model Releases: Making the Best Business Decisions with Your Photos of People, Places and Things

Here are some online resources -
Photo Attorney
Photo Attorney: Commercial vs. Editorial Use of Photographs of People
Legal Help
http://thecopyrightzone.com/

 

[Gavjenks]

Since you are writing a city guide, there is a VERY good chance that your usage falls under "editorial usage" and not under "commercial usage" (which usually means specifically for non-educational, purely money grubbing advertising only, not simply any time you make money off of a photo).

If so, then you would not need property releases for any of your photos in order to publish them, even in a for-profit book, because it is an editorial book about a city, where the photos are used to enhance the information being presented, not simply to sell something alone.

IF the business opens its doors to the public and does not have no photography signs, then this would even be true of photos of the INSIDE of the building, even if it is private property. As in, you could walk inside, snap a photo of the interior, and then go and publish it in your city guide and make money, while almost certainly not requiring a property release for any of it.

AND if you ask for permission ahead of time and are denied it, then you CAN'T use the photos, or you will open yourself up to trespassing charges brought against you and you losing the case (not copyright charges though). However, if you ask after the fact, then the photos are still probably fine to use, even if they say no (due to editorial usage and it having been publicly visible, it isn't even their call to tell you you can't use them, and since theyve already been taken, they can't charge you with trespassing for photographing something that at the time you didn't know they cared if you photographed).

But you do of course want to ask, because obviously it's always better to have a release than to not have one. Thus:

Conclusion: This is a situation where you should absolutely take the photos first and then ask afterward, and ask in a way that makes it ambiguous whether or not you've already taken the photos (like "Is it okay to take photos of this place and put them in a city guide?" but in professional language). This offers you the best set of possibilities and stacks the deck the most in your favor.

Because if they say yes, then you have legal protection no matter what, and if they say no, then you're at least no worse off than if you hadn't asked at all.


That being said, before you actually go and publish anything you DONT have a property release for, you should 100% absolutely consult a local lawyer in that city to make sure there aren't any weird local laws or whatever that would prove an exception to the rule.

But in 95% of situations in the United States, you will probably be fine publishing a photo of something visible to the public, where there weren't any signs, in an editorial city guide book, without a release.

 

[Gavjenks]

Also, if at all possible, you should try to ask them about their policy on releases in such a way that you don't directly give away your own identity or the title of the book or anything like that. Try to get information generically about whether they might give out releases, and then go give details and try to get a signature only if it sounds good.

But avoid lying in the process, that might be considered fraud somehow. Just leave out the most specific information if you can think of a way of doing so elegantly.

Why? Because even if they would lose the case, they can still attempt to sue you, which can be annoying and possibly expensive. You always want to avoid fights, even if you could win them.