by Bert Krages
The very nature of location scouting makes photography an important aspect of the process. Not only do photographs enable a location scout to efficiently convey the details of a location to a production company, they also become a scout’s database. Although location scouting is a fairly innocuous process, people can get upset over “strangers” who are taking photographs. It is important to understand the legal rights that you have when photographing public places and to know how to respond to harassment when taking photographs. In addition, because photographs of locations have great utility in the business of location scouting, they can be quite valuable as intellectual property. Although the film industry is not exactly known for being reasonable when negotiating services, and production companies usually try to grab all the rights they can, it is nonetheless important to retain to the extent possible the rights to your photographs.
The law in the United States is very favorable to photographers when it comes to shooting from public spaces such as sidewalks, parks and similar open areas to which public access is more or less restricted. When photographing in privately-owned spaces, you generally need the consent of the owner. However, in many cases, consent is generally implied when it appears reasonable under the circumstances to be able to take photographs. For example, you can generally assume that it is acceptable to take photographs in places such as shopping malls, public events and similar public areas unless there are signs stating that photography is not allowed or someone with authority tells you not to take photographs. Similarly, you could assume that explicit permission would be required in places that photography would be unreasonably intrusive such as taking photos of patrons at upscale restaurants or of patients in hospitals. This is often a judgment call, and various factors can be relevant regarding what is reasonable, including the number of photographs taken, the intrusiveness of the photographer and the nature of the equipment used.
Theoretically, there is very little that cannot be lawfully photographed. This includes things such as government buildings, transportation facilities, bridges, oil refineries and the police. But in practice, since 911, there are some laws that enable the prohibition of photography of specific areas when deemed necessary to protect national security. In addition, people in public view can almost always be photographed without their permission unless they are in a space in which they reasonably have a reasonable expectation of privacy such as dressing rooms and restrooms. When taking video of a location, keep in mind that the audio portion might be regulated by laws that prohibit the recording of conversations of other persons. These laws vary substantially by state. Some states require that all parties to a conversation must consent to recording and some states merely require that the parties be aware they are being recorded. Likewise, some states require that the parties have a reasonable expectation of privacy and others do not have this requirement. Several courts have ruled that there is a constitutional right to record police officers performing their duties. Although the laws pertaining to recording conversations vary substantially across the country, the issue can usually be avoided by refraining from recording in areas where conversations can be picked up by a microphone.
Despite the broad right to take photographs, sometimes someone will feel the need to interfere with your activities. Examples include security guards, concerned citizens and property owners. Generally, such persons are acting out of concern that you have an improper purpose and they can often be assuaged by explaining what you are doing. However, you are not legally required to explain yourself if you don’t want to. Most such confrontations can generally be handled by being civil but firm, albeit in a manner consistent with your personality. Keep in mind that private parties, including security guards, have very limited rights to detain you against your will. Furthermore, private parties have no right to inspect or delete your images and certainly are not allowed to take your equipment. Although law enforcement officers may have the authority to seize film when making an arrest, they otherwise must obtain a court order. Unless they have reasonable grounds to suspect that you are committing a crime (unlikely), they are not entitled to inspect or delete your images without a warrant or court order.
Copyright issues can be problematic for location scouts considering that many production companies are unwilling to be reasonable with respect to intellectual property issues. Although a production company would rarely have a legitimate business reason to demand that a location scout transfer the ownership of copyrights to their photographs, this is an industry in which reasonableness is not always an underlying principle of doing business. In any case, whatever concerns a production company might have could be resolved by the location scout granting a nonexclusive license to use the images. Furthermore, there are some valid business reasons for location scouts to retain the copyrights to their photographs. One such reason is that ownership of the copyright is necessary if you want to be able to legally reuse the photographs for future projects. For example, if you have previously photographed a potential site for a previous production company, and the site appears to be a good candidate for a later project, it would make sense to be able to present the previously taken photographs to the producer of the later project. However, if those photographs are now owned by the previous production company, reusing them would technically be an infringement of the copyright.
A typical clause in an agreement with a production company will deem that you are an “employee for hire” and that your photographs will constitute a “work made for hire” that was specially commissioned by the production company. The effect of being an employee for hire is that everything you create during the assignment will be treated legally as if the production company itself made the work. Although it is questionable whether a work-for-hire provision would actually apply to a photograph that is not incorporated into the film itself, such agreements typically have a provision that requires you to assign your copyrights to the production company. So, irrespective of the whether the photographs actually constitute works for hire, the assignment provision will generally be effective with respect to giving the production company the rights to your work. Finally, agreements commonly require that you either waive or transfer your “moral rights of authors.” Such rights in the United States are granted to a narrow category of artistic works and are not likely to be applicable to photographs taken while location scouting.
One possible way to ameliorate the harshness of such provisions would be to negotiate a rider to the agreement which states that you are giving the production company an unexclusive license to use the photographs but that you are retaining the copyrights. Such a rider would allow you to use the images for future projects. Likewise, the rider could restrict the transfer of rights to images that are actually provided to the production company. Using a rider instead of trying to modify the text of the agreement itself is more likely to be acceptable to a production company. Of course, if the answer is a flat no, your choice is limited to whether or not you want to do the work.
An interesting question is how such agreements apply to previously created photographs such as those you might have in your portfolio of potential locations that has been assembled in your free time. Such photographs would have been created outside of the agreement, and thus would not be considered works for hire. Furthermore, the works would have been created during the term of the employment. In such cases, you will most likely retain the copyright to those photographs because the agreements generally apply to works created during the specific assignment.
Finally, you should strongly consider the benefits of registering the copyrights to your photographs. This would allow you to enforce the copyrights in the event your photographs are infringed. This could be important in instances where someone is using images in a manner that you have not authorized. Examples include a competitor who has obtained your images and is using them in their own endeavors or a real estate agent who decides to use the images commercially.
The reason why registration is important is that it affects the economics of pursuing a claim. A timely registered copyright often makes the difference between an unauthorized use claim that settles quickly for a decent amount and one that is impractical to pursue. One reason is that if an image is timely registered, a court can award statutory damages in which you do not have to prove any specific loss. Depending on the circumstances, courts typically award between $750 and $30,000 per infringed work but may award as low as $200 and as high as $150,000 in extreme cases. Second, a court can award you your attorney fees if the image is timely registered. This is important because copyright litigation is expensive. Conversely, if the images are not timely registered, a sophisticated infringer will often call the copyright owner’s bluff, knowing that it will be imprudent to incur a large amount of attorney fees in an attempt to recover a relatively small amount of actual damages.
Registering the copyrights to photographs is neither difficult, time-consuming, nor expensive. The instructions on how to register copyrights online can be found at the U.S. Copyright Office’s website (www.copyright.gov) and are fairly easy to understand. Photographers generally register multiple images at a time because when done in this way, only a single application fee (currently $55) need be paid.
Bert Krages is an attorney in Portland, Oregon, who specializes in intellectual property issues. He is the author of Legal Handbook for Photographers.