Author Topic: iStock: Unreleased Private Homes (Read 17409 times)

iStop · « **Reply #50 on:** December 14, 2013, 16:06 »

I also don't see how notarizing it would make it binding on the next buyer unless it was registered and attached to the deed. The notary will only validate the current owner's signature. It isn't a guarantee of future performance.

BaldricksTrousers · « **Reply #51 on:** December 14, 2013, 16:07 »

Quote from: iStop on December 14, 2013, 15:14

Since property releases are technically only binding on the current property owner then how is iStock going to feasibly ensure that each property release on file for a house is still up to date at all times?

I don't see how they can and it will become nearly impossible for iStock to guarantee photo buyers in the future that a release is up to date and binding on the property owner at all times.

There's another problem here: suppose you can't get a property release after the property is sold. What happens then? The file gets pulled out of the collection? OK - say that happens. But the existing sales of that file are RF, so the agency has sold time-unlimited usage rights that it is not entitled to sell.

The rational position would be that no photo of a house should be sold RF if the property release is not legally binding on subsequent owners. And even RM sales should be for a very limited usage duration, as the status of the property might change in a matter of days or weeks. So perhaps there should be no sales under any license.

tickstock · « **Reply #52 on:** December 14, 2013, 16:09 »

ShadySue · « **Reply #53 on:** December 14, 2013, 16:09 »

Quote from: tickstock on December 14, 2013, 16:02

http://asmp.org/tutorials/using-property-releases.html#.UqzGuLSQn-I
http://asmp.org/tutorials/property-release.html#.UqzG_7SQn-I
Says you can get it notarized which would make it 'registered'.

That's in the US, of course.
How much does a notary's signature cost over there? Seems in the UK, it would be between £50 and £100
http://www.findlaw.co.uk/law/government/other_law_and_government_topics/500450.html
I bet a lot of casual homeowners, maybe one's friends and neighbours, are going to have second thoughts if you have to drag them along to a notary pubic!

tickstock · « **Reply #54 on:** December 14, 2013, 16:11 »

ShadySue · « **Reply #55 on:** December 14, 2013, 16:13 »

Quote from: tickstock on December 14, 2013, 16:09

Quote from: iStop on December 14, 2013, 16:06
I also don't see how notarizing it would make it binding on the next buyer unless it was registered and attached to the deed. The notary will only validate the current owner's signature. It isn't a guarantee of future performance.
Don't know that's just what they said. This is another part from them:
"What if you get the release to use a photo of a house, and then ownership changes hands? Is the release still binding? We would say probably yes, as you got it from the proper owner at the time. If ownership changes, that proper owner is (at least theoretically) obligated to tell the prospective new owner of the permission he gave you before the sale is made, so the prospective buyer can decide if he wants to purchase under that condition. Does this mean that a new owner won’t sue you? By no means does it mean that. What it means is that you have a defense, if you are sued. The courts will sort it out. The problem is that there is no case law on these situations, so the courts will have to make it up as they go along."

So, the situation now is that in most places, including the US, you don't legally need a release.
However:
"We've seen a steady increase in image claims involving this content. When taken on private property, legal claims are warranted and this content has always been prohibited. However even when shot off the grounds of private property, this content is problematic. Where we face claims from homeowners, under the terms of our Artist Supply Agreement, you are responsible for any costs associated with those claims. This change is about managing your risk, our risk and customer risk. Also, keep in mind that people identify very strongly with their homes and have a gut level negative experience that they share with our licensees, which does results in costs to you, iStock, and to our customers."

But now, if there's a release, even signed by a notary, "Does this mean that a new owner won’t sue you? By no means does it mean that. What it means is that you have a defense, if you are sued. The courts will sort it out. The problem is that there is no case law on these situations, so the courts will have to make it up as they go along."

So all you're doing is pushing hypothetical problems off for a few (or more) years while the property stays in the current hands.

iStop · « **Reply #56 on:** December 14, 2013, 16:15 »

I am sorry, but I think everyone is losing grasp of the purpose of the PR. It is a document to guarantee the photo buyer that there is a right to use the photo of someone's property for commercial purposes. If the current owner of the property hasn't consented to the property release then it becomes a useless false promise to the photo buyer. I certainly wouldn't want to be a photo buyer who buys a photo thinking it still has a valid release and goes ahead and uses that photo for an international ad campaign only to find themselves with a huge lawsuit on their hands from a property owner who is able to prove in court they never consented to use of the photo of their property. At least if you don't give the photo buyer a potentially invalid release they can asses their risk going into the situation and not be completely blindsided later by a possible lawsuit. With the PR you are perhaps giving the photo buyer a false sense of security and I assure you that iStock won't be standing behind the model release in court if push comes to shove.

iStop · « **Reply #57 on:** December 14, 2013, 16:21 »

So based on the above, I'm back to my original point. Don't offer any rights warrants with the photo since you can't guarantee those warrants for infinitude. Better to let the buyer know there are no warrants on the photo at all and let them assess the risk for themselves and decide whether or not they are willing to take that risk and buy the photo or not. A far better solution than giving them a potentially invalid warrant I assure you.

tickstock · « **Reply #58 on:** December 14, 2013, 16:29 »

BaldricksTrousers · « **Reply #59 on:** December 14, 2013, 16:36 »

Quote from: tickstock on December 14, 2013, 16:09

Does this mean that a new owner won’t sue you? By no means does it mean that. What it means is that you have a defense, if you are sued. The courts will sort it out. The problem is that there is no case law on these situations, so the courts will have to make it up as they go along."

Doesn't the bold bit actually mean "this is something that has never, ever, happened"? Which kinda suggests that the risk is very, very, very small indeed.

BaldricksTrousers · « **Reply #60 on:** December 14, 2013, 16:39 »

Quote from: tickstock on December 14, 2013, 16:29

Quote from: iStop on December 14, 2013, 16:21
So based on the above, I'm back to my original point. Don't offer any rights warrants with the photo since you can't guarantee those warrants for infinitude. Better to let the buyer know there are no warrants on the photo at all and let them assess the risk for themselves and decide whether or not they are willing to take that risk and buy the photo or not. A far better solution than giving them a potentially invalid warrant I assure you.
I think I would feel more comfortable in court with a signed release than without one.

I don't know that that's right. By providing the purchaser/agency with a release haven't you furnished them with a guarantee, thereby making yourself liable if the guarantee proves to be false? In the absence of a guarantee the responsibility - and liablity - for determining the legal position rests with the end user.

iStop · « **Reply #61 on:** December 14, 2013, 16:47 »

If the risk is that small to begin with then iStock wouldn't be planning to pull down over half a million photos, many of which are excellent sellers.

Well let's hope everyone's right and I am wrong and that a PR signed between a photographer and an owner (who may no longer own the property and can no longer offer any warrants) is enough to alleviate what iStock sees now as a very big risk.

Also, if there is a law suit it would probably be the current homeowner suing the photo buyer. Then the photo buyer would probably be the one to sue iStock later. So the photo buyer here really is taking the biggest risk I think.

iStop · « **Reply #62 on:** December 14, 2013, 16:50 »

Quote from: BaldricksTrousers on December 14, 2013, 16:39

Quote from: tickstock on December 14, 2013, 16:29
Quote from: iStop on December 14, 2013, 16:21
So based on the above, I'm back to my original point. Don't offer any rights warrants with the photo since you can't guarantee those warrants for infinitude. Better to let the buyer know there are no warrants on the photo at all and let them assess the risk for themselves and decide whether or not they are willing to take that risk and buy the photo or not. A far better solution than giving them a potentially invalid warrant I assure you.
I think I would feel more comfortable in court with a signed release than without one.

I don't know that that's right. By providing the purchaser/agency with a release haven't you furnished them with a guarantee, thereby making yourself liable if the guarantee proves to be false? In the absence of a guarantee the responsibility - and liablity - for determining the legal position rests with the end user.

Yes, thank you, that was the point I was trying to make. Giving no guarantee as they are now seems far safer than giving a guarantee that may be invalid later thus creating greater liability for iStock and the photographer in the long run.

tickstock · « **Reply #63 on:** December 14, 2013, 16:56 »

ShadySue · « **Reply #64 on:** December 14, 2013, 16:58 »

^^ Why is RF relevant? Released RM can also be used commercially.

tickstock · « **Reply #65 on:** December 14, 2013, 17:13 »

BaldricksTrousers · « **Reply #66 on:** December 14, 2013, 17:15 »

Quote from: ShadySue on December 14, 2013, 16:58

^^ Why is RF relevant? Released RM can also be used commercially.

RM would be less risky becuase it is usually timebound. If this really is a problem then iS has a big headache with millions of eternal licenses out there entitling people to use these images for decades.

It's likely that after 20 or 30 years the majority of homes will no longer be in the hands of the person who signed a release.

bunhill · « **Reply #67 on:** December 14, 2013, 18:19 »

Quote from: iStop on December 14, 2013, 16:15

the purpose of the PR. It is a document to guarantee the photo buyer that there is a right to use the photo of someone's property for commercial purposes.

The PR records permission to use a specific photograph taken at a specific time. Signed by the person who was responsible for the property at the time of the signing. The person signing signs in their role as property owner.

Here is an analogy: If the CEO of a company signs a contract, the contract does not need to be re signed if a new CEO is appointed. The person signing signs in their role.

Here is another analogy: If the US Treasury Sec or the US Treasurer are replaced, dollar bills (which are promissory notes - contracts ) do not become void.

Sean Locke Photography · « **Reply #68 on:** December 14, 2013, 18:34 »

Neither of those analogies is appropriate to this situation. Those would be analagous to X management company owns Y house. Mr Z., representing the company, signs off on permission. He leaves and W takes his place. The release is with the company, which works with your analogies.

A new home owner being upset at funding his home in an ad is not analagous to your examples, as his knowledge of the previous release was not a condition of the sale.

bunhill · « **Reply #69 on:** December 14, 2013, 19:05 »

Quote from: Sean Locke Photography on December 14, 2013, 18:34

A new home owner being upset at funding his home in an ad is not analagous to your examples, as his knowledge of the previous release was not a condition of the sale.

From the iStock PR which is typical:

Quote

I acknowledge and agree that this release is binding upon my heirs if applicable, assigns or any person claiming an interest in the Property. I agree that this release is irrevocable, worldwide and perpetual,

Quote

ASSIGNS, contracts. Those to whom rights have been transmitted by particular title, such as sale, gift, legacy, transfer, or cession.

- http://legal-dictionary.thefreedictionary.com/Assigns

ShadySue · « **Reply #70 on:** December 14, 2013, 19:08 »

I think the assign would have to have been made aware of the contract for it to be valid, and I'd be prepared to bet that wouldn't happen, as I mentioned above.

ShadySue · « **Reply #71 on:** December 14, 2013, 19:11 »

And already confusion among the inspectors:
http://www.istockphoto.com/forum_messages.php?threadid=358188&page=1
but per the official article that would seem to be OK:
http://www.istockphoto.com/article_view.php?ID=1652&sp_rid=&sp_mid=5932538

Interesting that the OP hasn't had a reply in 9 hours given that although there is a thread specifically for the PR for houses issue, queries about actual rejections are always redirected to the critique forum.

Sean Locke Photography · « **Reply #72 on:** December 14, 2013, 19:12 »

Quote from: ShadySue on December 14, 2013, 19:08

I think the assign would have to have been made aware of the contract for it to be valid, and I'd be prepared to bet that wouldn't happen, as I mentioned above.

Right. I doubt a court would look kindly on your signing ( non existent ) rights for someone else.

bunhill · « **Reply #73 on:** December 14, 2013, 19:29 »

I am absolutely certain you are over complicating this but am happy to agree to differ. That PR wording is typical.

Also sure that these new rules will have been carefully considered by people who know better than any of us.

bunhill · « **Reply #74 on:** December 14, 2013, 19:34 »

... incidentally I think it is quite normal to assign uncertain rights - for example an assignment transfer document will sometimes include wording about "such rights as may exist" or similar.

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Author Topic: iStock: Unreleased Private Homes (Read 17409 times)

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