Photo Attorney

Dec 4, 2007

Property Release Requirement Put to the Test

Readers of my blog (see, for example, my May 9, 2006, blog and May 24, 2006, blog for more information) are familiar with my position on the lack of a legal need for property releases except when photographing other copyrighted works and, in few cases, trademarks. Because no court or state has established a law - either by statute or by case law - that has created a right protecting the image of property, then it likely is detrimental for photographers to obtain property releases.

One photographer is being put to the test on this issue. The College of Charleston Foundation has sued Benjamin Ham for trespass, invasion of privacy, and conversion for his taking and selling photographs of the College's property, known as the "Dixie Plantation." The photo at issue, called "Plantation Road," can be seen on the Martin Gallery's website. A copy of the complaint is here. In sum, it appears that the College is claiming that Ham should not benefit from his alleged tort of trespass. The College also argues that it has "the right to prevent and/or control photography of a subject matter on restricted property" but does not seem to cite a law to support that proposition.

The College alleges that Ham passed through locked gates and ignored the "no trespassing signs" to enter its property without permission to take photographs. The College also claims that Ham violated the College's right of privacy (interesting, because the College does not allege that any person's privacy was violated) and that the commercial sales of the "Plantation Road" constitute "conversion" of the College's property for Ham's own use.

Ham's attorneys "removed" (moved) the case from the state court to federal court because, as Ham claims, the College is attempting to exert rights over Ham's copyright in the photograph - an issue that can be decided only by a federal court. Ham also has moved to dismiss the complaint alleging that, even if everything that the College alleges is true in its Complaint, the College has no right of action against Ham. The brief in support of the motion to dismiss can be viewed here.

Specifically, Ham claims that the College has no right of action against him because the federal copyright act preempts the state causes of action for trespass and conversion, the trespass claim fails because the College did not allege that Ham's trespass caused any physical damages as required, and because the College (as a non-person) has no right of privacy.

Of specific interest is the discussion of the conversion claim on page 6 of the brief for the motion to dismiss. Note that Ham's attorneys assert that the South Carolina law of conversion only relates to "personal chattels" and "goods," which are physical property such as shoes and Ipods, as opposed to intellectual property, such as copyrights. As addressed on page 8, courts rarely force a transfer of copyrights although they have restricted what the photographers can do with them. See an example in my September 30, 2006, blog.

The College has asked the court to remand the case back to state court and multiple briefs on the issue have been filed by both sides. The court will have to address the important issue of whether the plaintiff's state claims are preempted by copyright law before the questions of liability can be resolved.

The case could represent an important decision for photographers with respect to the need for a property release.

Thanks to the reader who submitted this alert (please contact me again).

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