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Author Topic: iStock: Unreleased Private Homes  (Read 17161 times)

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« on: December 13, 2013, 12:01 »
0
Just got this email.

What is changing?

Due to an increase in claims from homeowners, and to provide a better experience to our customers who license content from us, images/clips shot of private residences without property releases from the owners will no longer be accepted as creative content.

In the coming months, existing files without property releases will be deactivated from iStock and will no longer be offered from iStock or its partner sites.

What is not acceptable and what is?

If a single unreleased private home is the subject of a photo or video, it will be deactivated and will not be eligible for future submission without a property release.  Previously, we have accepted photos and videos of private homes that were shot from public locations. That will no longer be the case.  The new guidelines set out here will apply regardless of where the photo or video was shot.

Street scenes and vistas depicting three or more homes shot from a public place without a release are still acceptable.


This is gonna get ugly.  ::)


ShadySue

  • There is a crack in everything
« Reply #1 on: December 13, 2013, 12:10 »
+1
There's a thread about it over there.
I can't find a way to upload a PR for my own house already uploaded (not to lose best match position by deactivating and reuploading fresh), nor is it clear whether I can sign a PR or whether if should be the architect or his/her heirs or the company which incorporated the builder who built the estate. (1970s).

I have written to CR with these questions, but I've got another question pending since the 6th, so ...

« Reply #2 on: December 13, 2013, 12:20 »
+1
I guess you just need to shoot 3 at once and let the buyer crop...

Expect the removal of images to be slow and spotty. I wonder how many lawsuits they have had (for example is it a number larger than 0).

Who exactly does have permission to sign the PR - the bank, the resident, the architect, the builders, the painter, the company that built the windows, the landscaper...? They should at least have an easy way to do a PR for your own house.

« Reply #3 on: December 13, 2013, 12:35 »
-3
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« Last Edit: May 12, 2014, 00:08 by tickstock »

« Reply #4 on: December 13, 2013, 13:56 »
+1
There's a lot of real estate images, FANTASTIC ONES, whose owners will be very upset if their images are deactivated.  Some of those shots are in very exclusive housing markets where I doubt they have property releases. I wonder what the process is if they are deactivated and then you are able to get a property release.....do you get to keep you states of that image....especially if it has placement privilege with all the down loads.
« Last Edit: December 13, 2013, 17:42 by Mantis »

« Reply #5 on: December 13, 2013, 14:03 »
+2
I can't find a way to upload a PR for my own house already uploaded (not to lose best match position by deactivating and reuploading fresh), nor is it clear whether I can sign a PR or whether if should be the architect or his/her heirs or the company which incorporated the builder who built the estate. (1970s).


Instructions are in the article (link is in the email and also in the first post of the forum thread):

Quote
Due to an increase in claims from homeowners, and to provide a better experience to our customers who license content from us, images/clips shot of private residences without property releases from the owners will no longer be accepted as creative content.


Quote
If you have a release for your image of a private home, please send contributor relations an email and include the following:

RE: PR File#XXXXXXX

Body of email: Link to file

Please ensure to attach the release.

NOTE: If there are any models included in your files please include the Model Releases and the required Property Release in one file as an attachment.

Send your releases to Contributor Relations via this link.

Please note inquiries or questions related to this policy should not be sent via the above link. Only Property release submissions will be addressed
« Last Edit: December 13, 2013, 14:08 by bunhill »

« Reply #6 on: December 13, 2013, 15:34 »
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I think it must be bad enough for them to cut of a pretty big chunk of revenue!

lisafx

« Reply #7 on: December 13, 2013, 17:01 »
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So if I'm reading correctly, it is only when the house is the main subject of the photo?  Not if it's in the background when you are shooting something else (people)?

ShadySue

  • There is a crack in everything
« Reply #8 on: December 13, 2013, 19:01 »
+2
As always, the examples in the article are very obvious, and don't clarify the 'grey areas'. However, I think I'll just play safe and deactivate any single or two houses which aren't my own, even though some (not all) are pretty much 'generic', at least 'generic' enough so that thousands of houses built by the same builder look the same.

How does it work that a house owner can sign the PR and not the architect or commissioning builder (not a one-off design) but we can't sign a release for a car? I mean, lots of people fwould recognise that my house is an X builder's house from the 70s, just like anyone interested in cars would know my car is a Z model from Y manufacturer.

I wonder how much clout a 'new owner' would have if they complained that the previous owner, not they, had signed the release - I suppose that would 'depend' between legislations.

« Reply #9 on: December 13, 2013, 19:13 »
0
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« Last Edit: May 12, 2014, 00:08 by tickstock »

B8

« Reply #10 on: December 14, 2013, 03:44 »
+2
I think the bigger question will be if exclusives will be permitted to take this content and sell it elsewhere once it has been deactivated. If not, then it could leave some people in a very bad situation who have already invested a lot of time and money to create these shots.

« Reply #11 on: December 14, 2013, 04:35 »
+5
I found a workaround in my neighborhood today.  8)

« Reply #12 on: December 14, 2013, 06:07 »
0
Does this apply to home interiors too or just exteriors?

« Reply #13 on: December 14, 2013, 06:07 »
+1
How does it work that a house owner can sign the PR and not the architect or commissioning builder (not a one-off design) but we can't sign a release for a car?

Same form - different case I think ...

Model releases for cars are about copyrights and trademarks. It's about e.g. - that's clearly a Porsche, not that's clearly my car.

I think this thing with houses is more about not intrusively upsetting homeowners (and therefore, importantly, stock photo clients) irrespective of the specific legal implications in any particular country. A home is a very personal thing.

Self service RF obviously needs to definitely be completely problem free. So in both cases it is about avoiding trouble - but my reading would be that it is for subtly different reasons.

(The design of modern houses (which I do not think this is about) is much less clear with respect to copyright since many today are put together from individually pre fabricated and often generic component features and floor-plans. Obviously the rights to well known building designs or interiors would be a completely different issue again.)

« Reply #14 on: December 14, 2013, 06:09 »
+1
Does this apply to home interiors too or just exteriors?

It's in the article.

Quote
Recognizable or unique interior requires a release.

« Reply #15 on: December 14, 2013, 07:00 »
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Unique home interiors already needed release. So, files with home interiors aproved without release shouldn't be affected.

ShadySue

  • There is a crack in everything
« Reply #16 on: December 14, 2013, 07:10 »
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I think the bigger question will be if exclusives will be permitted to take this content and sell it elsewhere once it has been deactivated. If not, then it could leave some people in a very bad situation who have already invested a lot of time and money to create these shots.
If they feel that it is safe to sell these images, it would seem that they are permitted to sell them elsewhere, per the EASA:
"2 Provision of Exclusive Content
a    In this Agreement, "Exclusive Content" ... shall not include ...  (4) Content that is of a category not currently offered for sale by iStockphoto"

"Content that is of a category not currently offered for sale by iStockphoto" will  include, very shortly, unreleased house exteriors.

« Reply #17 on: December 14, 2013, 07:45 »
0
I think the bigger question will be if exclusives will be permitted to take this content and sell it elsewhere once it has been deactivated. If not, then it could leave some people in a very bad situation who have already invested a lot of time and money to create these shots.
If they feel that it is safe to sell these images, it would seem that they are permitted to sell them elsewhere, per the EASA:
"2 Provision of Exclusive Content
a    In this Agreement, "Exclusive Content" ... shall not include ...  (4) Content that is of a category not currently offered for sale by iStockphoto"

"Content that is of a category not currently offered for sale by iStockphoto" will  include, very shortly, unreleased house exteriors.
I'd always read that "category" to mean a type of content. ie logos, or editorial illustrations that aren't offered. Later on in the agreement there are other mentions of "category" which would tend to reinforce this view.  I could well be wrong, but it shows how all this is open to interpretation, and so (expensive) legal argument.
I didn't have any great selling house shots. Just one or two reasonable ones and a fair few less good. I've taken them down.
If iStock aren't happy about the risk then neither am I. Apart from any IP considerations, you have to wonder about the issue of privacy for people living in a particular house.

ShadySue

  • There is a crack in everything
« Reply #18 on: December 14, 2013, 08:04 »
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I've taken the down four which look nearest to the ones in the article and am considering a few others in the 'grey area' and will send a PR for my own house. It turned out I had fewer than I thought, and luckily the ones I deactivated either never sold or had few sales, so no problem for me; that won't be the same for others.
I also have  a very few 'architectural details' which don't look generic but which I changed in PS, and guess I'll have to root out the originals.

I'm not a lawyer, and it's certainly not worth it to me to check it out with an international lawyer, but certainly 'unreleased single houses without releases' will soon be a 'category' of images they don't accept, but agree their lawyers could twist that any which way. Their agreements are deliberately kept vague for exactly that purpose.

Anyway, a while back, there was another category of deactivations which would have affected me a bit more, so I wrote to the admin who had announced that change of policy, asking if I could submit them elsewhere and he said, in theory yes; but why would I want to risk legal action? I wrote back with specifics on my images showing why they were not a risk. Whether because of these details or whether they just haven't got round to it yet (after several years, at least two), these images are still on iStock.
« Last Edit: December 14, 2013, 09:19 by ShadySue »

« Reply #19 on: December 14, 2013, 08:15 »
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I've taken the down four which look nearest to the ones in the article and am considering a few others in the 'grey area' and will send a PR for my own house. It turned out I had fewer than I thought, and luckily the ones I deactivated either never sold or had few sales, so no problem for me; that won't be the same for others.
I also have  a very few 'architectural details' which don't look generic but which I changed in PS, and guess I'll have to root out the originals.

I'm not a lawyer, and it's certainly not worth it to me to check it out with an international lawyer, but certainly 'unreleased single houses without releases' will soon be a 'category' of images they don't accept, but agree their lawyers could twist that any which way. Their agreements are deliberately kept vague for exactly that purpose.

Anyway, a while back, there was another category of deactivations which would have affected me a bit more, so I wrote to the admin who had announced that change of policy, asking if I could submit them elsewhere and he said, in theory yes; but why would I want to risk legal action? I wrote back with specifics on my images showing why they were not a risk. Whether because of these details or whether they just haven't got round to it yet (after several years, at least two), these images are still on iStock.

As you did in the previous case, the only real way to know if something is allowed is to check with them. My images were either low/no sales, or had slowed right off, so I didn't see any great loss in deactivating.
I can see that this could be really bad news for some people though.

« Reply #20 on: December 14, 2013, 08:24 »
+8
I'd like to know what these claims are that they are doing this now.  You don't need a release for a house or building.  They don't have rights: http://www.danheller.com/model-release.html#8.2

However, if you agree that Mr. X is in the right to sue you for using an image of his house, and you get him to sign a release, and he sells it to Mr. Y, Mr Y. is not going to care what you signed with Mr. X.  The release is between you and Mr. X, not Mr. Y.  So, if a property sells, you're just as vulnerable as you were without the previous owner's release.

As we know of course, ownership doesn't entitle the owner to give you any rights at all, really.  I own a Porsche.  I can't sign the property rights to shoot it to you.  I own a Lebowitz print from Walmart, but I can't sign the rights to you.

If iStock had any sense, they would create a new form going forward stating an agreement between the owner of property and the photography that permission to be on the property and photograph the property was given.  Because that's what they really want to know - did this person ok you taking an image of their property.  That way, at least they can say "Well, you knew about it".  Like a model release.   But something that doesn't make the owner liable for what is in the image.

Oh, and houses don't need releases: http://propertyintangible.com/2010/08/houses-right-of-publicity.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+PropertyIntangible+Property,+intangible&utm_content=Bloglines

ShadySue

  • There is a crack in everything
« Reply #21 on: December 14, 2013, 08:39 »
+1
AFAICS, Mr Heller only refers to US Law.

We already know that Nazi swastikas aren't allowed on iStock (since 2007) because they might lead to problems under German Law only.
http://www.istockphoto.com/forum_messages.php?threadid=57152&page=1
(It seems that they won't accept them for editorial use either, as a search for 'swastika' only has original Indian swastikas and lots of spam where there is no swastika in the image (mostly by one person) and one image of someone painting over swastika grafitti.)

So it may be that these photos may be legally problematic in one or more countries furth of the US. Or it may be that some disgruntled homeowners have engaged in some sabre rattling, and they're better safe than involved in litigation, even if it would eventually find in their favour.
« Last Edit: December 14, 2013, 11:07 by ShadySue »

« Reply #22 on: December 14, 2013, 09:11 »
0
Exactly, Sean. I shot a house that a friend wanted to rent as a holiday home, all signed and sealed, no problems. But now he wants to sell it. One of the pictures is featured on the intro to a TV show, the owner spotted it and was quite excited. But I've wondered for some time what a buyer will think if he's watching telly one day and suddenly sees his house pop up on the screen. I really don't know.

« Reply #23 on: December 14, 2013, 10:29 »
0
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« Last Edit: May 12, 2014, 00:07 by tickstock »

« Reply #24 on: December 14, 2013, 12:00 »
+1
A search for "house" in "Photos" gives more than 640.000 results. Someone has to go through this number, decide whether each photo fulfils the criteria (if interior: is it unique or recognizable, if exterior is it one house or more and is it only as background or the main part of the image), and act accordingly...

I don't see how they will deal with that amount of work? Ideally there would be a grace period to give everyone who has a property release a chance to upload/e-mail it to them before they start weeding out - but this of course would generate even more administrative work  :o

Also one has to wonder: What will be next? Dogs, cats, horses, or ducks, even?
« Last Edit: December 14, 2013, 12:16 by Ploink »

ShadySue

  • There is a crack in everything
« Reply #25 on: December 14, 2013, 12:07 »
0
There's a few days grace to send in PRs, as the deactivation is starting on 20th Dec. They have also said that deactivated images can be reactivated after that on receipt of PRs.

There's a huge list of person-made / person-owned things that are potentially next.

« Reply #26 on: December 14, 2013, 12:08 »
-1
There's a huge list of person-made / person-owned things that are potentially next.

where are you getting that information from ?

ShadySue

  • There is a crack in everything
« Reply #27 on: December 14, 2013, 12:17 »
0
There's a huge list of person-made / person-owned things that are potentially next.

where are you getting that information from ?

What information?

ShadySue

  • There is a crack in everything
« Reply #28 on: December 14, 2013, 12:34 »
0
I'd like to know what these claims are that they are doing this now.  You don't need a release for a house or building.  They don't have rights: http://www.danheller.com/model-release.html#8.2

In the article, they aren't claiming that the buildings need releases, but that we, the contributors are liable for any legal action a home owner might instigate:
"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."
http://www.istockphoto.com/article_view.php?ID=1652&sp_rid=&sp_mid=5932538

« Reply #29 on: December 14, 2013, 12:37 »
-1
There's a huge list of person-made / person-owned things that are potentially next.

where are you getting that information from ?

What information?

That there is "a huge list huge list of person-made / person-owned things" which  "are potentially next".

Where is this list ? Who says ?

Goofy

« Reply #30 on: December 14, 2013, 12:38 »
+1
A few of my attorney friends did agree that the signed property release is strictly between the photographer and the current home owner- if the house is sold than another release would have to be done.

« Reply #31 on: December 14, 2013, 12:43 »
0
It seems like the questions and complications with this issue will be endless. Plus there are gray areas which can never be absolutely sorted or made consistent.

In addition, what happens to images pulled from iStock that are on Getty? Do they stay on Getty or will Getty be pulling all their house snaps too?

Then what about images that have been deactivated. How will the contributor know which ones they are? Will the contributor be given a list or will they show on the site somewhere where the contributor can pull them up?

« Reply #32 on: December 14, 2013, 12:47 »
+2
That there is "a huge list huge list of person-made / person-owned things" which  "are potentially next".

Where is this list ? Who says ?

Well, it stands to reason that if something that does not have rights needs a rights release, then many other things that do not have rights would need a "release".

ShadySue

  • There is a crack in everything
« Reply #33 on: December 14, 2013, 12:53 »
+1
There's a huge list of person-made / person-owned things that are potentially next.

where are you getting that information from ?

What information?

That there is "a huge list huge list of person-made / person-owned things" which  "are potentially next".

Where is this list ? Who says ?

There are many person-made/owned things, amny of which has the potential to be deactivatable at any time. That is obvious, and has often been said by admins in various forums, usually along the lines of 'guidelines are constantly being reviewed and are subject to change'.

There have been several rounds of culls when certain content has been deemed 'problematic'.

I can't follow their logic anyway.
Soon after I started I asked about an African mask, the sort you buy in any duka in Africa or can buy here. I was told a PR would be imperative. I pointed out that that would be impossible, as although they are handmade, they are all made to the same design by many workers in wood-carving factories, so you'd never know who had made any individual mask (they are not signed or marked) and the designs are very old. No matter; PR imperative. Ha! When editorial arrived, I thought about my masks as editorial, then found that there were several in the main collection. I presume they got shopkeepers to sign releases, or that releases weren't, in fact, needed.
Conversely, I have a handmade papier mache mask of Ganesha, made in Indonesia but bought here. Initials at the back, presumably those of the artist, but I don't know that for sure. Submitted it as editorial - rejected and told to submit to the Main collection. Queried the rejection and was told it had to go to the Main collection. Didn't do so.

ShadySue

  • There is a crack in everything
« Reply #34 on: December 14, 2013, 13:00 »
0
...
Then what about images that have been deactivated. How will the contributor know which ones they are? Will the contributor be given a list or will they show on the site somewhere where the contributor can pull them up?
If you have a file deactivated, or if you deactivate one yourself, you get an email telling you so.

BTW, having never had need to persuse a PR before, I'm bemused by the grey box in the top right corner:
"Attach Visual Reference of Property here: (Optional)
(Aligned to top right-hand corner if larger than box.)
For example, Polaroid, drivers license, print, photocopy, etc."
Looks like that's just been thoughtlessly copied and pasted from the MR - what relevance can a driver's licence have to a PR? (mine doesn't have a photo, anyway)

ShadySue

  • There is a crack in everything
« Reply #35 on: December 14, 2013, 13:00 »
+1
That there is "a huge list huge list of person-made / person-owned things" which  "are potentially next".

Where is this list ? Who says ?

Well, it stands to reason that if something that does not have rights needs a rights release, then many other things that do not have rights would need a "release".

Exactly my point.

« Reply #36 on: December 14, 2013, 13:23 »
+1
With respect to a released property later being sold. The answer here, I think, is logically simple and obvious. The house is sold with the release already in place. The person using the stock photograph would be able to quickly confirm that the property release and the photograph pre dated the sale of the property. i.e. - that a pre-existing legal agreement was already in place when the property was sold.

it stands to reason that if something that does not have rights needs a rights release, then many other things that do not have rights would need a "release".

With respect, it does not IMO (stand to reason). Homes are a particularly sensitive issue. People are understandably often sensitive about their personal space. I can think of no other single thing which compares. Except perhaps pets - and I would guess that many people already now get property releases for pets even though these are not necessarily asked for.

The question of whether or not a release is strictly required is often going to be grey. Especially given that the law, even the basis of the systems of law, varies so much all over the world. No matter - because getting a release is clearly best practice - irrespective of any definite requirement. Because RF stock is supposed to be definitely ready to go problem free and no need for further consultation. Unlike RM. Someone buying an RF stock photo does not want to later be bothered by someone with a complaint which is difficult to address.

« Reply #37 on: December 14, 2013, 13:59 »
-1
With respect to a released property later being sold. The answer here, I think, is logically simple and obvious. The house is sold with the release already in place. The person using the stock photograph would be able to quickly confirm that the property release and the photograph pre dated the sale of the property. i.e. - that a pre-existing legal agreement was already in place when the property was sold.

Whether or not the photograph predated the sale of the property is irrelevant.  The current owner will be upset and will threaten legal action if he wants.

Quote

it stands to reason that if something that does not have rights needs a rights release, then many other things that do not have rights would need a "release".

With respect, it does not IMO (stand to reason). Homes are a particularly sensitive issue. People are understandably often sensitive about their personal space. I can think of no other single thing which compares. Except perhaps pets - and I would guess that many people already now get property releases for pets even though these are not necessarily asked for.

The question of whether or not a release is strictly required is often going to be grey. Especially given that the law, even the basis of the systems of law, varies so much all over the world. No matter - because getting a release is clearly best practice - irrespective of any definite requirement. Because RF stock is supposed to be definitely ready to go problem free and no need for further consultation. Unlike RM. Someone buying an RF stock photo does not want to later be bothered by someone with a complaint which is difficult to address.

So you might as well get a release for everything in the image.  I mean, you wouldn't want Levi's to get upset you're using their design.  Or IKEA to take a poor view of your use of their designed furniture.

« Reply #38 on: December 14, 2013, 14:08 »
-1
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« Last Edit: May 12, 2014, 00:07 by tickstock »

« Reply #39 on: December 14, 2013, 14:56 »
+1
The way it is now if you remove a label and/or branding on something then it is ok to sell a trademarked or copyrighted design in one of your commercial photos. So is this going to change too? It seems like it should based on the whole house rationale. Thus, if we can't sell a generic photo of a house anymore then we shouldn't be able to sell a generic looking photo of an iPad where we've removed the buttons, logos, etc either.

I can see this becoming an endless can of worms because technically if Apple can distinguish that it is their iPad in a photo being used for commercial purposes then they technically have grounds for a lawsuit as much as the homeowner of the house does.

I now see how iStock can be backing themselves into a corner here on this issue that they won't be able to get out of so easily if other copyright and trademark owners realize there is now an open door here for a legal dispute.

« Reply #40 on: December 14, 2013, 15:00 »
0
Whether or not the photograph predated the sale of the property is irrelevant.  The current owner will be upset and will threaten legal action if he wants.

But the question or threat would have a quick legal answer which is that the property release (a contract) was already in place and documented. It is not going to be difficult to answer since the later sale of the property would not invalidate it.

You could certainly argue that a vendor should notify a potential buyer that the PR exists as an existing contract. But that is a different matter. That would be between them only.

I do not know how it works in the US. But in many countries the advocate acting for the buyer has the role of researching existing contracts, covenants etc. I suspect that the contract of sale in many countries will include the seller confirming that there are no undisclosed contracts which relate to the property.

Anyhow - if the future sale of a property was a potential issue then you can be 100% certain that the people at Getty would have already thought about that. The only thing I can see being an issue is that the current owner is going to have to sign even for existing content - unless there was a property release signed at the time.

(These are obviously my own personal opinions.)

« Reply #41 on: December 14, 2013, 15:14 »
+1
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.

They would be better off keeping things as they are now and selling photos without releases because selling a photo license with an invalid release has to be much worse then licensing a photo without one at all.

By providing a release you are making a legal promise to the buyer whereas without offering a property release you aren't making a promise.

Common sense says don't even open the door.

« Reply #42 on: December 14, 2013, 15:25 »
0
Since property releases are technically only binding on the current property owner ..

Stop you there since you are misunderstanding contracts from the start.

Permission for something which happened previously cannot be revoked. Unless you are a time traveller.

ShadySue

  • There is a crack in everything
« Reply #43 on: December 14, 2013, 15:38 »
+2
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?
Hmmmm
The PS says, "I acknowledge and agree that this rlease is binding upon my heirs if applicable, assigns, or any person claiming an interest in the Property".
Seems weird if that is legal, but anyway even assuming it is, a new owner could  complain to a buyer every bit as much as a current owner, given that a release appears not to be necessary anyway. If someone sees their property in an advert, it's natural they'd think they might be due a lot of money.

I do not know how it works in the US. But in many countries the advocate acting for the buyer has the role of researching existing contracts, covenants etc. I suspect that the contract of sale in many countries will include the seller confirming that there are no undisclosed contracts which relate to the property.
There are loads of issues here too. Some togs probably don't know this is an issue, and just ask for a signature wihtout mentioning it. The current owner who signed probably didn't think that much of it, and later in a legal issue could argue (in some legislations) that they weren't 'fully informed' when they gave their consent. In any case, if the tog was very casual about it, and the owner not really bothered about it, they'd no doubt forget about it five, ten, twenty years down the line.

How could the advocate possibly find out about a property release having been signed? Would an agency even reveal this in such a situation (i.e. if the advocate were trying to ramp up their expenses by contacting every possible agency to ask)? How is the agency going to fund the expense of checking whenever lawyers  write to ask if '1 First Street, Anytown" has a property release signed on it?

Like I said, no skin off my nose; I've already deactivated four 'definites' and one 'maybe' and no doubt will do a few more over the next few days. But as a general issue, it's worth exploring from all angles.
« Last Edit: December 14, 2013, 16:02 by ShadySue »

« Reply #44 on: December 14, 2013, 15:40 »
+1
For a property release to remain binding on the new owner after the property is sold it would need to be registered against the deed like a lien.  Otherwise it isn't a legal liability against the house as it is not something the new buyer agreed to or was made legally aware of.

If there is a renter living in the house it is a different story. Then the lease is binding against the new owner and should also be registered with the land office in order to secure the renter's future permission. In some cases though even leases can become invalid if there is a sale of property. It depends a lot on local law. So to make a blanket statement that in every city and country of the world some menial property release signed by the previous owner for a photograph is binding on the property forever is completely REDONCULOUS.

So something as nominal and menial as a property release won't remain attached to the property unless it is formally registered and it should also state in the release that it remains binding on the property for infinitude or it's just worthless paper.

« Reply #45 on: December 14, 2013, 15:49 »
0
For a property release to remain binding on the new owner after the property is sold etc

What do you mean by 'binding' ? It has nothing to do with a new owner and the new owner is not bound to do anything.

ETA: ok I understand now from the generic PR what you mean by binding in this sense.

You cannot revoke a permission for something which happened (a photograph) previously. The permission is for the photograph when it was taken - agreed by someone who had that permission when the photograph was taken.

We are all over-thinking this. The requirement for PR is already a significant step forward.
« Last Edit: December 14, 2013, 19:18 by bunhill »

« Reply #46 on: December 14, 2013, 15:50 »
0
Bottom line, unless the property release is registered against the property in a legal fashion or the new buyer signs a legal acknowledgment and acceptance of the existing PR when they buy the property, then nothing is binding on the new buyer and your PR becomes worthless as soon as that property changes hands, regardless of what the previous owner might have agreed to in an informal unregistered agreement with a  photographer. In a legal dispute all the new owner would have to say is they were never made aware of the agreement nor did they accept the liability of the PR against the property and they have won the battle.

« Reply #47 on: December 14, 2013, 16:02 »
0
.
« Last Edit: May 12, 2014, 00:07 by tickstock »

« Reply #48 on: December 14, 2013, 16:04 »
+1
And no, it's not a step forward, it's a step backward because now you are promising a photo buyer that there is existence of a valid PR which still remains in effect forever when in fact you are not able to make that promise. Not making any warrants at all is far better for everyone in a situation like this where you can't control the future validity of the agreement made between the photographer and current property owner. The only thing you can guarantee the photo buyer is that there was an enforceable PR signed at some point and it was valid at one time. But continued validity can't be guaranteed regardless of whatever warrants the current owner might like to try to offer the photographer.

« Reply #49 on: December 14, 2013, 16:05 »
0
Bottom line, unless the property release is registered against the property in a legal fashion or the new buyer signs a legal acknowledgment and acceptance of the existing PR when they buy the property, then nothing is binding on the new buyer and your PR becomes worthless as soon as that property changes hands, regardless of what the previous owner might have agreed to in an informal unregistered agreement with a  photographer. In a legal dispute all the new owner would have to say is they were never made aware of the agreement nor did they accept the liability of the PR against the property and they have won the battle.

This is why you are ultimately wrong:

In most countries there is most likely already no legal requirement for a property release anyhow. So this is already belt and braces stuff which would simply provide a further degree of protection (against already rare bother). This probably mostly tends to have more to do with best practice than law.

Anyhow - this has nothing to do with a new buyers. Just the same as they would have no claim over the use of a photograph of the interior of their house taken, say, 100 years ago.

« Reply #50 on: December 14, 2013, 16:06 »
0
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.

« Reply #51 on: December 14, 2013, 16:07 »
0
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.

« Reply #52 on: December 14, 2013, 16:09 »
0
.
« Last Edit: May 12, 2014, 00:06 by tickstock »

ShadySue

  • There is a crack in everything
« Reply #53 on: December 14, 2013, 16:09 »
0
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!

« Reply #54 on: December 14, 2013, 16:11 »
0
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« Last Edit: May 12, 2014, 00:06 by tickstock »

ShadySue

  • There is a crack in everything
« Reply #55 on: December 14, 2013, 16:13 »
+1
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 wont 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 wont 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.

« Reply #56 on: December 14, 2013, 16:15 »
+1
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.

« Reply #57 on: December 14, 2013, 16:21 »
0
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.

« Reply #58 on: December 14, 2013, 16:29 »
+2
.
« Last Edit: May 12, 2014, 00:06 by tickstock »

« Reply #59 on: December 14, 2013, 16:36 »
+1
Does this mean that a new owner wont 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.

« Reply #60 on: December 14, 2013, 16:39 »
+1
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.

« Reply #61 on: December 14, 2013, 16:47 »
0
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.

« Reply #62 on: December 14, 2013, 16:50 »
+1
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.

« Reply #63 on: December 14, 2013, 16:56 »
0
.
« Last Edit: May 12, 2014, 00:06 by tickstock »

ShadySue

  • There is a crack in everything
« Reply #64 on: December 14, 2013, 16:58 »
0
^^ Why is RF relevant? Released RM can also be used commercially.

« Reply #65 on: December 14, 2013, 17:13 »
0
.
« Last Edit: May 12, 2014, 00:05 by tickstock »

« Reply #66 on: December 14, 2013, 17:15 »
+2
^^ 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.

« Reply #67 on: December 14, 2013, 18:19 »
0
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.

« Reply #68 on: December 14, 2013, 18:34 »
0
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.

« Reply #69 on: December 14, 2013, 19:05 »
0
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

  • There is a crack in everything
« Reply #70 on: December 14, 2013, 19:08 »
0
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

  • There is a crack in everything
« Reply #71 on: December 14, 2013, 19:11 »
0
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.

« Reply #72 on: December 14, 2013, 19:12 »
0
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.

« Reply #73 on: December 14, 2013, 19:29 »
-1
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.

« Reply #74 on: December 14, 2013, 19:34 »
0
... 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.

« Reply #75 on: December 14, 2013, 21:15 »
+1
.
« Last Edit: May 12, 2014, 00:05 by tickstock »

ShadySue

  • There is a crack in everything
« Reply #76 on: December 14, 2013, 21:40 »
0
Actually, unless there is nothing person-made in the image, I almost always tick 'needs PR' and 'No', even if it would be acceptable on iStock. On Alamy, the buyer has the responsibility for deciding if their use would be risky.
« Last Edit: December 15, 2013, 08:53 by ShadySue »

ShadySue

  • There is a crack in everything
« Reply #77 on: December 15, 2013, 08:26 »
+2
So, as noted above, the current scenario in the US and in other countries where you don't need a release for property.

Homeowner to Advertiser:  "I see you are using my house in your advert and I want $Xk or I will contact my lawyer"

Advertiser to designer:  "Why is this homeowner mad with our ad?"

Designer to iStock: "I've got an irate client here, do you have a PR?"

Is to advertiser:  "No, but none is needed"

filters back up the line, until:
Homeowner to Lawyer:  "Sue, sue, sue"

Lawyer to homeowner:  "You probably don't have a case"


Now is very similar, except a few years on (or 'now' in the case of some older photos):

Homeowner to Advertiser: "I see you are using my house in your advert and I want $Xk or I will contact my lawyer"

Advertiser to designer: "Why is this homeowner mad with our ad?"

Designer to iStock:  "I've got an irate client here, do you have a PR?"

Is to advertiser: "Yes"

filters back up the line, until:
Homeowner to Lawyer: "I didn't sign any contract, a previous owner did. Sue, sue, sue"

Lawyer to homeowner: "You probably don't have a case"

NB: I'm not saying getting a release isn't the Right thing to do. However, in terms of counteracting
"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."
it can only go so far. It will, of course, reduce the claims, as there will be a proportion of home owners who do not move.
« Last Edit: December 15, 2013, 08:36 by ShadySue »

« Reply #78 on: December 15, 2013, 23:52 »
+1
I found a workaround in my neighborhood today.  8)

Well, I thought it was a workaround. Just got a reject ++ Needs Property Release ++ from an almost identical image. All the others were accepted.

ShadySue

  • There is a crack in everything
« Reply #79 on: December 16, 2013, 11:08 »
0
Interestingly, some posts over there point out another issue: when people made images of show homes (etc) with verbal permission to upload them as stock in return for supplying the images to the builders. I remember one of my CN, who doesn't frequent the forums, did that a lot.
Now people are contacting the builders for PRs, but I can foresee problems with the current or future owners of the homes in these cases (to the extent that there are currently problems, as indicated in the email).

« Reply #80 on: December 16, 2013, 14:38 »
+5
Hi All,

 Lots of different feedback on this topic. I run a stock agency that deals with property released locations. We send our content to 90 different distributors. From Getty, Corbis, Gallery Stock, Masterfile, just about every Macro agency that sells content sells our Spaces Images content. We have always been directed by all of our distributors that an image with a property release will sell much better than one without and our sales show this to be absolutely true.
 Despite what everyone might think about the legal side of this topic the end is that resellers want a PR or they will put your content in Editorial. It will still sell in Editorial but from our experience the sales in Editorial are nothing compared to the Creative division. More and more agencies do not want the legal issues to deal with and if the agency that represents your content does not want to carry the risk and are asking for PR's then I guess that is the only answer that matters here. It can be debated to death as to what is legal and what isn't but if our resellers of imagery want PR's for their homes, businesses, schools, etc.
 Bottom line properties that are accompanied by a PR make more money than those that aren't. I hope this helps a bit I appreciate the posters here it has been a good topic to bring to light.
 

Thanks,
Jonathan
[email protected]

ShadySue

  • There is a crack in everything
« Reply #81 on: January 04, 2014, 20:47 »
+2
I'd like to know what these claims are that they are doing this now.  You don't need a release for a house or building.  They don't have rights: http://www.danheller.com/model-release.html#8.2

Sorry to revive this old thread, but reading this link that landbysea provided in a different thread, it seems that in the UK, "The Advertising Standards Authority has upheld complaints when photographs of private residences have been used in advertising without the owners permission."
http://www.digitalcameraworld.com/2013/02/12/is-it-legal-to-take-pictures-of-buildings-photography-law-questions-answered-by-experts
So I'm taking that if there's an issue in the UK (and probably other countries) that's why iS is taking the cautious approach.


 

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