Is there a legal issue here?

[rjbuzzclick]

Hi,

I'd like to get your opinions on this:

First off, I'm not a professional photographer, I don't sell prints, occasionally exhibit a few for fun, and also give prints as gifts to friends.

A while ago on a family trip to a town a few hours away from our home, I took a photo of an interior of a restaurant, which is still much the same as it was when it was built in the 1920's. A local friend of mine mentioned that he would like to have a print to hang in his restaurant. I told him that I wouldn't sell him one, since I don't do this professionally, but would be happy to give him one.

My question is: Are there any legal issues with this transaction? The photo was shot on private property (a restaurant), and the subject is private property. I have no signed release for the photo. I understand that I would not be able to SELL a copy of this photo legally, but can I GIVE it to someone for public display in a public business? The print, when displayed, will not be marked as being for sale (and it isn't for sale).

Thanks for any input you all have.

 

[OurManInTangier]

I have no knowledge of U.S. law so hopefully someone suitably knowledgeable will be able to help you soon. I would wonder whether permission from the restaurant owner or manager would need to be sought as it was taken on (their) private property and the subject is of their property on top of which the print will be given to the owner/manager of another restaurant for display.

As I say, more a query from me than a hard and fast answer. I hope you manage to get a decent resolution.

 

[Aristophanes]

The subject being private property is not at issue. It is implicit in restaurant use that photos will be taken on the premises, for personal use or enjoyment of the public that gather there.

Even selling the photo for cost to a friend would not constitute a commercial activity. Using said photo in a broad commercial endeavour could be seen as breach.

As for the display in another restaurant, I doubt there is any issue here. Its free advertising or a mark of respect for another restaurant. What you describe appears mutually beneficial to everyone.

 

[rscheffler]

I could see this being a problem if the other restaurant owner considers the display of the photo as commercial gain for your friend's restaurant. It may also depend on how prominently the image is displayed, size, whether it's the only one, or just one of many in a wall collage seen in many restaurants, if there are identifiable people in the image, etc...

It's probably a situation where it won't be a problem, but you never know...

Might be worth asking this question of the guys over at http://thecopyrightzone.com/

Not sure if they provide free advice, but doesn't hurt to try.

Or ask the owner of the restaurant you photographed for his/her opinion/permission.

 

[goamules]

Bunk....if other restaurants want to moan, they can get their own picture. I would not worry about it, they're not going to care if a picture of their place is up somewhere. If it's been around as long as you say, there are probably pictures everywhere.

To ask permission is to seek denial. Don't even mention it. People have better things to do, like cooking food.

 

[IdealCamera]

Legal advice is worth what you pay for it

Legal advice is worth what you pay for it

“We note that relying solely on any single, non-attorney source for legal advice, especially on the internet, can lead to an adverse outcome such as the one in this case.” C.E. v. Review Bd. of the Ind. Dep't of Workforce Dev., 2010 Ind. App. Unpub. LEXIS 831, 3 (Ind. Ct. App. June 18, 2010).

 

[Pablito]

To ask permission is to seek denial. .

Ja, and the other truism is "Trespass first, apologize later"

Generally good rules to photograph by, though no excuse for insensitivity and not true in every case.

 

[willie_901]

If the photograph is displayed as a work of art, in the US, you have no issues.

You have freedom of expression and so does whoever owns the artwork.

In addition usage is not the same as creating the photograph. For instance if you sold the photograph as artwork and the buyer then added a caption, "The food here is terrible", you did not defame the restaurant, the photo's owner defamed the resturant. You can not control usage but you can put in writing the purchaser agrees to use the image responsibly.

Commercial use implies endorsement or approval - in other words advertising or promotion, usually by a person. Use on merchandise, t-shirts for example, would also be commercial.

Private property owners who invite the general public on their property create a public space. They can prohibit photography in that space. But they can not take you camera or harass you. All they can do is insist you leave and tell you never to come back again.

In the US property releases are generally redundant. This is certainly the case in California.

http://propertyintangible.com/2010/...le+Property,+intangible&utm_content=Bloglines

An exception is when the photography is intentionally trespassing. Then the photographer has no rights.

However stock agencies and others require property releases anyway for commercial usage. After all, people sue even when their chance of winning is minuscule.

Unless you invade an individuals right to privacy or defame them, using their likeness in art work does not require a release.

In Texas there is an ambiguous law that opens any photographer to arrest for taking anyone's photograph in public.

http://www.photoattorney.com/photography-can-be-a-crime-in-texas/

Fortunately this law was recently ruled unconstitutional. But further appeals by Texas may be on the way.

http://gritsforbreakfast.blogspot.com/2013/09/is-texas-improper-photography-statute.html

 

[Tom A]

I would give your friend a copy of the photo - AND I would make a 2nd copy and give to the original restaurant.

 

[lxmike]

I would give your friend a copy of the photo - AND I would make a 2nd copy and give to the original restaurant.

now that is a good idea

 

[rjbuzzclick]

Thanks everyone for taking the time to respond. Ultimately, everyone's answer is correct for their own situation. I do like the idea of delivering a second print to the original restaurant and may go that route on our next trip and see what results.