Photo Attorney

Feb 9, 2007

David Shirks at Goliath's Threat - Photos of Property

Large organizations often try to intimidate photographers from using pictures of their property by alleging the uses are illegal but the law has yet to support their claims. These threats understandably give pause to the independent photographer who may not have the funds to fight a lawsuit even when in the right. Unfortunately, photography companies are now altering their practices.

A major stock agency recently distributed the following notice it received from The Zoological Society of San Diego (that runs the San Diego Zoo) to its photographers:

It has come to our attention that an image on your website, [name removed], may have been taken on grounds at the San Diego Zoo. The Zoological Society of San Diego does not allow any personal photos to be taken and used for commercial purpose. We have strict policies concerning this matter. The policy for photo and video taken at the Zoo and the Wild Animal Park that can be found on your admission ticket into the facility is stated as follows:

The commercial use of photographs, video and film you may have taken during your visit is strictly prohibited without the full written consent of the Zoological Society of San Diego.

Furthermore, the Zoological Society of San Diego policy prohibits photographs and/or video taken on grounds to be utilized commercially and/or promotionally. The Society is a private, non-profit organization, which relies on exclusive images of our plant and animal collection in order to raise money for our worldwide conservation efforts. You are, therefore, prohibited from selling your images in a gallery, on the Internet or for any other commercial purpose, as well as referencing the Zoological Society of San Diego. Please remove any images from your web-site [name] upon receipt of this letter.

First, the Zoological Society never cites a law to support its "policy" because selling photos taken there does not break any laws. Second, selling images in a gallery or on the Internet does not necessarily qualify as a "commercial" use. Third, the Zoological Society may not rely on a term on the ticket/receipt as binding since a person would have not noticed it at or before the contract was entered into when acquiring the ticket (hence the need for "I Agree" check boxes on websites and shrink wrap packaging on software signifying your agreement for the license).

An increasing number of organizations are complaining about photographs of their property. A list can be found on the Picture Archive Council of America's website. They make all kinds of claims - trademark violations, trespassing, property ownership/control - but none of them are supported by law except for protection of other copyrighted works (statues, but not buildings) and in a very few cases, trademark infringement/dilution.

The Zoological Society has the right to prevent the taking of photographs on its property but it does not try to stop it. Instead, it sponsors and advertises photography activities on its grounds. That it tries to restrict the use of the photos after they are taken there is astonishing.

It is disappointing that a stock agency would submit to the Zoological Society's request by removing images designated as being taken at the Zoo and then passing the notice on to its members with a recommendation to comply. Individual photographers may not have the resources to fight Goliath, but if photographers stand on the shoulders of others, we may be big enough to knock Goliath down.

Take my advice; get professional help.

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