Model releases have taken up a lot of real estate, a lot of ink, in our lectures and writings. Location releases, not so much. Many people think they are not needed, as the consent is “obvious” and/or “assumed”. We’re not going to go into that chestnut about the word, assume. Some think that those who utilize a property for creative purposes do not “legally” need a location release. But the truth is, it is vitally needed. One protects both the artist (photographer, videographer, filmmaker, illustrator, etc.) as well as the property owner for issues both legal and as you’ll see, otherwise.
For fans of the hit TV series “Breaking Bad’ the mere mention of “throwing pizza on the roof” conjures up a classic TV moment and a phrase that has become part of the vernacular. For those of you unacquainted with the show, the lead character Walter White, is leaving his home and is shall we say, rather angry. He proceeds to throw a pizza pie on the roof on his home.
Check out this CNN video story that explains it all: https://www.youtube.com/watch?v=uk2sibEFZl0
The show was filmed in Albuquerque, New Mexico. The location of the house is well known to locals and especially to tourists. The show has been off the air since 2013 but that has not stemmed the tide of tourists and fans. A “Breaking Bad” tour bus brings numerous gawkers to the home daily.
This situation is not unique. The “Archie Bunker house” used in “All in the Family” was similarly afflicted with a multitude of tourists in Queens for the years during which the show ran and for even more years during the period re-runs were shown.
In the movie, “Deliverance,” there was one memorable, horrifying male rape scene that lasted a little more than four minutes, but has lasted over 4 decades inside the hearts and minds of the people who live there. Despite any negative stereotypes, the Rabun County Convention and Visitor’s Bureau says more than a quarter-million people flock to the area each year to shoot the very same rapids they saw come to life on the big screen with Burt Reynolds and Ned Beatty. It’s made tourist dollars flow into Georgia.
What Hollywood built – a baseball field for ghosts in an Iowa cornfield in July 1988 – is one of the top tourist attractions in Iowa. To commercially capitalize on the movie, a “real” Field of Dreams which was built for the movie of the same name was reconstructed in Dyersville Iowa. In that instance the current owners want visitors.
OK, so what if you want to shoot a video on location and the owners are reluctant to rent out their home, business or farm fearing that they will suffer the same fate as the owners of the “Breaking Bad House”? These fears and problems are easily avoided by the creation of a written, signed location agreement. Ed has done many and the key is always to insert terms that will prevent viewers from identifying the “real” location.
Real life example: First run movie about drug dealing. Studio offers the owner of an NYC building lots of money to use the brownstone type structure for 2 weeks of filming the premise as an upscale “crack den”. Studio sweetens the offer by giving owner a two-week cruise as part of the deal so he has a “place to go during filming”. Typically big film/tv studios provide large amounts of insurance (absolutely necessary, all of the time) and agree to leave the premises in the same condition as they found them. Not good enough for Ed. Citing the Archie Bunker house he suggested to his client and the studio agreed that:
- The address on the house would be changed during the shoot;
- The house which was brown, would be painted yellow during filming and repainted brown when filming was complete
- The front door would be changed for filming purposes and the steps would “lose their railings”;
- Every interior shot would be filmed in a room painted a new color for the filming and then repainted another color of the owner’s choice when filming was complete;
- No views from inside the apartment to the street or vice versa would be permitted. So a viewer could not identify the location of the house by seeing anything next to it or across the street;
- No filming outside of the house unless the street was closed to traffic and pedestrians.
The movie came out, was successful and runs on TV frequently now over a decade later. The neighbors who “knew” about the filming at the house, no more wanted tourists on the block than the owner did. Someone watching that film today could not find the location from anything they can see on the screen.
It appears that the owners of the Breaking Bad House did not take any such precautions, nor did the producers. In the above example the film studio likely paid just the painters well over $10,000 many years ago. A location agreement disguising the location need not cost any studio “real” money. Address numbers can simply be removed, mail boxes not shown, no street scenes permitted, no shots of burglar alarms or unique large items. Ed did a location agreement for a mansion that had a large lime green grand piano. Dead give away to anybody in show biz at that time as to where the filming took place, so no shots of the piano were permitted.
All of the aggravation and expense being incurred by the couple in Albuquerque could have easily and cheaply been avoided. The show ran for years and had a huge audience. Repeats are in syndication. Ed confesses that as a fan of the show (and of its prequel now running, “Better Call Saul”), he’d drop by too if he were in the neighborhood. And being a typical New Yorker, more likely to eat his pizza, than to throw it.
#1 by Ken Brown on November 23, 2017 - 1:17 am
How about a photographer taking photos of properties to use on the MLS to sell the home for the real estate agent/broker? In forums where real estate photographers hang out and exchange urban myths, the question of whether to get a property release or not crops up a couple of times a year.
I am under the impression that property doesn’t have privacy rights nor can it be defamed with images that are a close approximation of reality. The examples above connect a specific property with a story that creates the attraction and without the story line, the property would just be another house.
In addition to creating and licensing images for a real estate agent, it can be a good side line to also license the same images for use in advertising various products and services. Many times a landscaping firm that revamped the front yard or a cabinet builder also want images. Since those images have more value based on their usage than the agent’s use, the license is more. Sometimes much more. Will providing those secondary licenses mean a property release is a necessity? Chances are that if the home is occupied, they will have moved out by the time another party publishes the images they have licensed. I also edit out anything related to security equipment or safe storage/valuables.
#2 by Edward C. Greenberg on December 26, 2017 - 2:30 pm
The simple, best answer is to say that it is always better to have a property release. The best practice is to have one in writing and signed, always.
Sometimes a property owner will object to a secondary use or license and make your life miserable without necessarily suing you. You can read between the lines but suffice for now to say that we have represented some wealthy property owners whose homes, factories or offices were used without consent on behalf of third parties with whom they had no relationship. We did not need to sue to have the practice stopped and receive compensation.
Sometimes a “normal house” becomes notable. Although NOT my case:
After the drowning death of Mary Jo Kopechne with Ted Kennedy at the wheel, a house was purchased by the Kennedys for her parents in the Poconos in PA not far from our house. The parents resided there in seclusion for years until one day a photo of the house with the background of the purchase became public. Overnight a formerly ordinary house on a back road became a local tourist attraction. Using that house in an ad or for a product would have likely led to a viable lawsuit under one or more grounds.
Since ya’ never know, follow the First Rule of Boxing, “Protect yourself at all times”
#3 by Ken Brown on February 9, 2018 - 10:06 pm
The real estate photos made of a home for sale seem to be a tough biscuit. At the time the photos are made, the owner of the home is looking to sell the house and usually does. My client is the real estate agent and I may not have any contact with the owner if the home is vacant or occupied by a tenant. Should I get a release from the agent? The agent’s contract with the owner will often include permission to make or have photos made. I don’t think that I’ve photographed an owner occupied home in the last couple of years where the owner wasn’t present at the time the photos were made. Implied consent? I keep all of my emails and often times I’m notified when an appointment is confirmed that the owner, Mr. Smith, will be expecting me. I don’t allow only a minor occupant to be present during photography for many obvious reasons.
A posting on a real estate photographer’s forum described problems that a photographer had with the purchaser of a home insisting that they owned the images that were commissioned by the previous owner’s agent since they now owned the home.
I’ve never had an issue and nobody I’ve ever seen writing about property releases (other photographers mostly) can point to a single case. Anything that I put out on a secondary license will never show personally identifiable materials and doesn’t include the address of the home. If the customer is a contractor or sub-contractor on the home, of course they will know. I even come right out and encourage real estate agents to send me referrals if they know who a contractor is and I give them a commission on any sales from that referral.
#4 by Edward C. Greenberg on February 16, 2018 - 2:15 pm
Your property release ought always contain a representation that the person signing has authority to convey the right to you to photograph the home by virtue of ie ownership or capacity as RE Agent. Try to avoid putting an end date for the license and include that the photos may only be used to sell, promote the sale of a particular home at a specific address by the owner and/or realtor only. In this way the photo can’t be used to promote the realtor UNLESS you want to charge extra for that extended or more expansive license.
Any offers for referrals should be separate and apart from a given property release.
If that doesn’t answer your question(s) let us know.
#5 by Jack and Ed on February 16, 2018 - 5:35 pm
Ken, I think Ed missed the part about the second owner claiming ownership of the photos. Owning the house doesn’t give the first owner or the second or any future owner any rights to your image. Copyright doesn’t work that way. As the maker of the photo, you own the photos. Also, if the legal owner of the house at the time you took the photo signs a release, it’s still good even after the house is sold.
Jack