To limit scope, this discussion will focus on when you need a property release for buildings captured in your videos in the United States. Sculptures, paintings, and other protected property will be covered in part II.
What’s the Issue?
Many people wrongly assume that the need for a property release for a building is a copyright issue.* It’s not, its a trademark issue. In general, if your video of a building is taken from a public place (not from the inside) the owner of the building/property cannot prevent the use of the video for commercial purposes unless the use of the video violates the building owner’s Trademark. There are very few buildings that have obtained trademarks from the U.S. Patent & Trademark Office.
Is a Property Release Needed?
When is a property release needed? It depends entirely on how the video will be used. Property Releases are needed if the use of the video implies an “association” between the subject and the commercial use. So, the rumor that “you can’t take videos” of buildings is entirely wrong. You can always take videos and you can always license videos because licensing in itself does not imply an association. The act of selling is merely a transactional act, which doesn’t imply “association” at all.
So Why do You Need a Property Release?
Sometimes it is beneficial to have a property release because some commercial buyers will need a property release depending on how they use the video clip in selling their product. Having a property release will thus increase your number of potential eligible buyers. Note, not all commercial buyers need a property release — only those who might use the video in a way that implies an association between them and the subject. If you are interested, one well known case is Rock and Roll Hall of Fame v. Gentile 134 F.3d 749 (6th Cir. 1998). It involved an artist doing business under the name Gentile Productions. The artist sold a poster of the museum in the foreground of a sunset.
Most buildings are either not trademarked, or even if they are registered, do not have a clear trademark (one exception could be the Seattle Space Needle as it is symmetrical 360 degrees around) or minimal “good will” value. Of those that do have value, the use of the video has to suggest an association with the mark. The general rule is that the cases where a property release is required are so minimal, you can consider it more the exception than the rule.
If you are not sure whether videos of a building need a property release, call or email your Nimia Agent.
Below is a non-exhaustive list of a few buildings claiming trademark status in the U.S.
NY Stock Exchange,The Pacific Exchange, The Mercantile Exchange, Commodities Exchange and Chicago Board of Trade, Disney’s Epcot Center, Mystic Marine Museum, Rock & Roll Hall of Fame, Rockefeller Center, Hollywood Chinese Theater, Seattle Space Needle, Biltmore (Virginia house) and San Simeon Estate, Busch Gardens, Sea World, Florida & California Universal Studios, Eiffel Tower, The Flatiron Building, NYC The Chrysler Building, NYC The New Orleans, Superdome.
*The copyright in an architectural work does not include the right to prevent others from making and distributing videos of the constructed building, if the building is located in a public place or is visible from a public place. Note that other countries have different laws regarding copyright & trademark issues, e.g., in France, a property release is required from the copyright owner if the building is the primary subject of the video and the video is used for commercial purposes.
**Eric J. Harrison, Esq. is an Intellectual Property Attorney and Chief Legal Counsel for Nimia.