Artists are always looking for beauty in the world, and sometimes this leads to someone’s home. Some homeowners have beautiful architecture, gardens, or farms that look as though they should be on the next cover of a magazine. But if you go ahead and snap a picture, are you in the clear? Is it legal to actually sell the photograph, or should we say inspired artwork?
Is it legal to sell photos of someone else’s property? Yes, it is legal to sell photos of someone else’s property. However, you need to be careful about where you are snapping the photo as well as what is shown in the picture. When selling for commercial purposes, you must also have a property release form signed, and in some cases, a model release contract signed, too.
If you are thinking about selling off pictures of a beautiful home you have come across, then you need to know the facts to keep you out of trouble. After all, there is a definite right way and a wrong way to go about taking and selling pictures of private property. Some of the ‘wrong’ ways can lead you to a lawsuit but going about it the right way can be fun and flattering for the owner.
The Legality of Taking Pictures of Someone Else’s Property
Before we dive into the selling aspect, it’s important to know whether you have the right to take the picture in the first place. Knowing these important facts will also help you to make sure that you are not stepping out of your photographing boundaries and accumulate your striking visuals in a legal manner.
Think about it this way: have you ever seen a photograph of your home while searching through a real estate website? What about your lovely farm being the centerpiece of a postcard? It may have alarmed you, but the bigger question is whether it was legal to get these pictures. This information is not only good for the photographer but for the property owner as well.
Can You Take Pictures of Someone’s Private Property Without Their Consent?
The simple answer to this question is yes, you can take a picture of someone’s private property without their consent or without them even knowing. The biggest thing you need to keep in mind is that you must take the picture from a public place, such as a sidewalk or the city street.
Why is that? Well, the main reason is that there is no expectation of any type of privacy when you’re in a public place. Anything that can be seen on your private property from a public space, such as the sidewalk, is no longer considered ‘private’ and can be photographed legally.
What About the Interior of the Home?
Sometimes a photograph may show a bit of the interior of a home, which can become all the more concerning for the homeowner. But is a photograph showing the interior of the home illegal? No, a photograph that has a bit of the interior of the home is not illegal, as long the interior can be easily seen by the exterior of the home.
It all roots back to the fact that anything that can be seen by the public eye can be photographed legally. This includes all aspects of your home, from the exterior to the interior as well as the rest of your property, such as your immaculately landscaped property.
Are There Any Exceptions?
Of course, it’s not always acceptable to take photos of someone else’s property. Sometimes it can lead you in a heap of legal trouble. That is why it is so important to make sure you are acquiring the photographs legally, from a public area, and avoiding these pitfalls:
One major concern that comes to the property owner’s mind when they see their home or property online is whether the individual has trespassed. Trespassing by itself is a crime that can lead to legal issues. Now, imagine tacking on a trespassing charge with taking photographs of someone’s property without their consent? You’re in for a slew of charges.
You should also consider a few other things that may be considered trespassing according to Attorney Brian Farkas of Are Videotaping and Photography Allowed on Someone Else's Private Property?
- Placing your camera over someone’s fence in order to take a photograph could be seen as trespassing. This is because you can’t see the property from a public area, and you’re going out of your way to get a visual of someone’s property. This could easily land you in a heap of trouble.
- Taking pictures of someone’s property while flying above it can be trespassing. With drones becoming so immensely popular in communities, it can be easy to want to snap a photo of someone’s stunning backyard. However, this is ‘private’ property as it can’t be seen from the sidewalk and therefore is illegal.
- The property owner doesn’t need a ‘No Trespassing’ sign to establish whether the area is private. This can make it a little extra challenging to know where to go and where not to go. However, if you stay in the public spaces, you shouldn’t have an issue with trespassing.
However, there is some leniency when it comes to trespassing and obtaining photographs. If you find yourself in any of these situations, you won’t have to worry about a lawsuit coming your way:
- You were taking a photo or video of a natural disaster or some other type of disaster. Think about how many times you have seen all aspects of someone’s private property on the news, such as when a fire occurs. This is deemed legal.
- You were taking a photograph of a crime taking place. These types of photos are not noted as illegal. In fact, they are incredibly helpful to law enforcement, and they will be glad you snapped the pictures.
- You had permission to be on the private property by the owner. If you were invited by the owner, say for a dinner party, and you happen to find their countertops in the bathroom exquisite and snap a picture, this likely is not going to be trespassing as you originally had permission to be there.
Harassment and Nuisance
Another thing to be careful to avoid is a legal doctrine known as ‘nuisance.’ But what exactly is a ‘nuisance’ charge? A nuisance charge can’t be placed because you, the photographer, are simply a nuisance or otherwise annoying. Seeing how some of the borderline professional photographers carry themselves online, this is a good thing. A nuisance charge can apply when the person photographing or recording the private property is interfering with how the homeowner uses their private property.
Harassment, on the other hand, is any time you are lingering around a private property with the intent to harass. While it may not even be your intent to harass, if you’re hanging around someone’s property for an extended period taking photos, then this can become a legal matter- especially if they have asked you to leave.
Private Information Is Shown
It’s also a really bad idea to include any private information in your photograph. Things that can be considered ‘private,’ even on public property, are:
- People who are on the property while you are taking pictures. While they can be seen by the public eye, photographing people comes with a whole different set of rules – especially when it comes to selling.
- There is private identification in the picture. Consider things such as house numbers as private identification that should never be shown in photographs.
- Private situations or artwork. Any type of artwork that was created by the homeowner, or certain situations occurring on their property, should never be included in your pictures. I'll give a couple more examples of this in the selling section below.
To put it simply, you want the photographs of the private property to be as disconnecting as possible. The home or property, as exquisite as it may be, should not really look like someone’s residence. You should completely avoid any type of identification that could lead to most pole recognizing the house or finding out where it is.
Can You Sell Photos of Someone Else’s Property?
Now that we know the dos and don'ts of taking a picture of someone’s property, it’s time to jump into the wonderful world of selling photos of someone else’s property. After all, if these pictures are never going to see the light of day and you’re snapping them just to work on your photography skills, there really isn’t too much to worry about.
For the most part, it is legal for a photographer to sell a photograph of an unrecognizable property without getting into trouble. Of course, you must make sure that there is no private information being shared and that the property owner wouldn’t find the photograph offensive in any way, the offense of the photo itself notwithstanding. This could lead to lawsuits on property and privacy.
There isn’t too much of a concern when it comes to selling pictures of someone’s property, especially when done in a tasteful and low-scale manner. This could include someone selling a picturesque property picture, framed, to someone locally online. However, it becomes more challenging when selling property and home photos for commercial purposes.
What About Selling and Using Pictures of Someone Else’s Property for Commercial Purposes?
The rules change a bit when you’re dealing with selling and using pictures of someone else’s property for commercial purposes, such as ads and brochures. Of course, in this instance, you also have the right and wrong way to go about it. Make sure you are taking the proper steps to sell your pictures legally to avoid potential courtroom battles.
What Is a Property Release?
A property release is going to be your best friend when it comes to selling and using the pictures of someone else’s property for commercial purposes. But what exactly is a property release? Well, a property release is simply a signed document by the owner of the private property that grants the pictures to be used for commercial purposes.
The property release is also necessary when the property itself is recognizable or contains private information directly related to the property owner, such as:
- Any pets that have found their way into the photograph.
- Cars or other forms of transportation, such as a motorcycle, that are found in the photograph.
- Any type of artwork that is shown in the photograph, especially handmade pieces of art.
The release will allow you to publish the photograph, even for commercial use, containing these more private elements. The release will keep you protected from any type of legal claim that could otherwise come your way, especially if there are private, personal items in your photograph of their property.
Do You Always Need a Property Release?
You will almost always need a property release when using a photograph of someone else’s private property for commercial purposes. There are a lot of professional companies that may also require a property release when buying your photographs to protect them from any type of legal trouble.
It’s important to never rely on someone’s verbal consent when it comes to property releases. Verbal consent will not hold up in court, should there be a legal battle in the future. If you’re planning to use the pictures for commercial purposes, always make sure there is a signed property release document that will hold up in court.
After obtaining the signed property release form, keep it close to the picture you photographed. You may also have it filed away. The important thing is to always keep the signed release form in case legal trouble arises. Don’t throw the document away, or you will have no proof that anything was signed giving you permission to use the photos.
However, a lot of the time, you do not need a property release when using these photographs for editorial purposes. If your pictures of someone else’s property are going to land themselves in the local newspaper, there should not be a need for a property release. It is important to ask for requirements, though, anytime you’re dealing with a business – even local ones.
You also do not need a property release document when using the photographs for personal use. If you are not planning to sell or display the pictures anywhere, then there is no need or reason for a property release to be signed.
Don’t Forget About the People in the Photograph, Too
You are ‘safe’ to use a picture of someone else’s property for commercial purposes, even if it has a picture of personal artwork, pets, or cars involved, as long as there is a signed property release document. But what about people?
If the homeowner is accidentally or purposefully) snapped in the picture, are they covered by the property release?
Now, a lot of people may assume that just because they were not taking a picture of the person but rather the property, that there is no need for a special document for the individual. But this couldn’t be further from the truth. Even though you were there to photograph the property, if a person can be seen in the picture you are using commercially, then you will need a model release form.
That’s right – model release forms aren’t just for ‘models’ who are posing in front of cameras. According to Craig Hull from How to Write a Photography Model Release Form 2020, this contract is necessary whether you’re taking photographs of professional models inside of a studio or shooting more candidly, such as doing shots of someone’s front yard.
The model release form is just as important as the property release form when it comes to avoiding legal issues. People have the potential to sue for invasion of privacy, and in some cases, defamation of character. These lawsuits will obviously have very negative consequences, so it’s best to avoid them completely and have a model release contract signed. As Craig Hull writes,
“This is a crucial step in commercial photography. It allows (or forbids) the uses of images for the purposes of promotion or sales.”
Unfortunately, this means that if someone does not want to be seen in the picture, then you will not be able to sell it for commercial purposes.
Keep in mind that model release forms do not have to be signed for editorial or personal use, just as the property release documents are not necessary. They are only needed when being sold for commercial purposes.
Taking pictures of someone’s private property is legal if you take the picture from a public area and are not trespassing or harassing. It is legal to sell these pictures, even for commercial purposes, if you have the property release document signed, and — if there are people in the picture, a model release form signed. However, these documents are not needed for personal use or for selling for editorials.
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