Photos and the family homestead

More on photography for genealogy

A question from reader Amber Tauscher reached the desk of The Legal Genealogist just about the same time as yesterday’s reader question about photography in cemeteries. But Amber’s question is a bit broader. “I have a question for you regarding photography – specifically whether or not I can legally take a picture of someone’s home (or barn, land, etc.) for the sake of genealogy,” she began. “I recently drove by the home where my father was born in 1925 and got out and took a picture to save in my files but it got me thinking about if it’s legal or not. I stood on the sidewalk and did not step foot on the property.”

The house where I grew up

That’s the easy part of her question.

And the answer — at least in the United States — is almost always going to be yes, taking a photograph for your own personal use from a public place where you have a right to be is perfectly legal.

You might not know that today with all the post-9/11 paranoia about photography, and all the signs you’ll see about not taking pictures near airports, train stations and the like. But street photography isn’t a crime, and your photo of the old home is perfectly okay.

The general way the legal rule is stated is, if you can see it from a public place where you have the right to be, then you can photograph it from that same place. That’s why the cemetery can restrict what photographs you can take while you’re on its property but can’t stop you from taking a picture of its gates while you’re sitting in your car on the public highway.

That rule would likely cover the situation suggested by Vicki Wright, who wondered about standing outside of the grounds of a private cemetery with a telephoto lens — as long as you’re standing in a public place. And the rule certainly does cover Jacqi Stevens’ question about Google and its “Street View” version of its maps. As long as the image of your home that Google took was taken from the street, Google has as much right to take that image as you would if it was the house in which you or your mother or grandmother grew up.

There are a lot of online guides to the rights of photographers that are excellent, and two in particular for the United States that I recommend are:

     • Know Your Rights: Photographers from the American Civil Liberties Union; and

     • “The Photographer’s Right” from Bert P. Krages II, intellectual property attorney and author of Legal Handbook for Photographers:The Rights and Liabilities of Making Images.

But there was more Amber wanted to know: “I am also a transitioning genealogist and started taking clients earlier this year. If legal, I would like to offer photography services to my client as I live in an area with old farms/barns/homes that may be of interest to someone if their ancestors owned them once-upon-a-time. Can I legally take a picture of someone’s home and then provide that image to my client?”

And here it can get just a little stickier. Once a commercial purpose is introduced, other issues have to be considered. One problem you may not be thinking of is copyright. Yep, copyright.

The problem is that works of art, and in some places around the world that even means buildings, have copyright protection. In the United States, you’re okay on copyright because of a specific exception for photographs of buildings. Section 120(a) of Title 17 of the United States Code provides specifically:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

Note that this only covers architectural works — and not any actual works of art on the grounds of the building — so be careful here. That building can be photographed, but that sculpture out in front of the building can still get you in trouble.

And even the rule that the building can be photographed isn’t true everywhere around the world. If you’re traveling outside of the United States and want to take pictures of the family homestead, you need to review local law in that country. A good place to start doing your research is the Freedom of Panorama discussion on Wikimedia Commons.

Now anybody who pokes around the internet researching building photography is going to come across something called a property release. It’s a consent form where you can ask the property owner to give permission for you to photograph the building or barn or land and for you to then use that photo. While you may want to get that signed permission, in the United States, you don’t need it as long as the owner can’t be identified just by looking at the photo. The American Society of Media Photographers has a good test you can apply to decide if you need a release or not.

Implicit in that test, though, is the fact that once we start introducing people into the pictures, we get stickier still. In the United States, you don’t need permission to take a photo of someone who’s out in public. We protect what’s known as a legitimate expectation of privacy, and our courts conclude that we don’t have a legitimate expectation of privacy when we’re out and about. That’s why there’s no legal hassle to all of those security cameras that are installed taking pictures of us just about everywhere we are in public these days.

But once we decide to do something with the pictures — to use them in one way — there are privacy interests that come into play.

You’re not allowed to use a photo of a person for commercial purposes without permission. Folks don’t want to see their own faces touting a product like XX Brand Beer if they didn’t agree to that. You can’t publish a picture that misleads the viewer — putting a caption on a photo of folks saying they were being taken to jail when they were being taken to church. And you need to be very aware of privacy interests. Publishing a photo of someone coming out of a doctor’s office — or a pawn shop — isn’t a good idea.

Again, the situation is very different in other countries — in some countries you can’t even take a picture of a person without permission — and a good place to start your research if you’re going to be taking photos elsewhere is the Commons:Photographs of identifiable people discussion on Wikimedia Commons.

So for safety’s sake, whenever there is an identifiable person in an image you want to use, get permission… or retake the shot another time when nobody’s standing in the yard.

Bottom line: in the United States, yes, you can take photos of a house or barn or land from the street or public sidewalk. Yes, you can provide them to a client and get paid for it without running afoul of copyright laws. But you’re always better off getting permission before using an image that shows an identifiable person, and for your own peace of mind, getting permission even to take the shot of a building is never a bad thing. And always remember the law is different in other countries; don’t ever assume it’s the same abroad as it is here.

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12 Responses to Photos and the family homestead

  1. This is how I started my “Weathervane Wednesday” series on my blog. There are many historic weathervanes in my area, and some have fascinating stories. But not all located on public buildings (churches, gas stations, banks, schools). When I have to photograph a private home I either 1) contact the owner for permission (no one has refused to give me permission yet) 2) stand in the middle of the road and take a photo or two 3) stand in the road, and if I see the home owner I explain my actions and hand them a business card with my website (they have all loved it and invited me onto the lawn for a closer look and more stories, but I understand that this might not always happen). I’m also prepared to explain my rights to someone if they aren’t happy. But it just not worth a legal fight for my blog. Fortunately I’ve had good luck so far with nearly 100 photos.

    • Judy G. Russell says:

      Very good system, Heather, and, like you, I’ve never had anyone deny permission. I once had to talk fast (I was sincerely worried about my health with the property owner…) but that was the worst I’ve ever seen. Most folks are delighted to share.

  2. Kimberly says:

    Boy, do I know firsthand of the post 9-11 photography paranoia! I learned the hard way. I went to a hospital a few years ago to take some pictures where a birth occurred to record for my records and scrapbook. I was in the parking lot but a minute snapping a couple pictures of the sign and building, and up rushes security after me telling me I cannot take pictures of the hospital due to 9-11 security threat precautions. I was worried he was going to confiscate my camera. He accepted my story but I had to leave. I was shocked and embarrassed to say the least, and now I’m a little paranoid myself of taking pictures of places. Google street view / maps has become my primary go-to for building images from then on.

    • Judy G. Russell says:

      I’ve had similar experiences post 9/11 as well, Kimberly, and it surely is shocking. I am now the owner of a t-shirt: I’m a photographer, not a terrorist.

  3. Lynne Carothers says:

    Interesting post, Judy. I instantly thought of the Duchess of Cambridge’s recent nude photo fiasco. If I am correct in remembering, the photos were taken while she reclined in a private area and the super-duper camera was a mile away on public land. Boy I’m glad no one wants revealing photos of me! lol

    • Judy G. Russell says:

      Lynne, the poor Duchess has the additional issue of being a public figure (literally as well as figuratively now!), and so her legitimate expectation of privacy is lessened to some degree. Definitely an ouch situation for her.

  4. Extremely useful information! I copied the URL of the ACLU about a photographer’s right to take a picture from the street. I do have a question about use — what kinds of “use” are defined as “use for commercial purposes”? I’m supposing that money has to be involved somehow? What about a blog? Especially, what about a “book blog.” like mine, which is an extremely indirect way of eventually inducing a person a two to read your book at some point before the end of time? (It’s not a sales pitch!)

    I came across a related issue just yesterday — I wanted to put my own scanned photo of the Mercy Learning Center’s annual report (I volunteer tutor at the MLC) in my blog, because their work connects with my blog theme. It shows an identifiable person, but with no name. The Director of MLC said it was a public document, and that I could therefore use it. Yet I didn’t ask the person on the cover if I had her permission. I don’t know who she is. I’m using it, and I hope I have a legal right to do so with the permission of the MLC.

    Thanks for this post!

    • Judy G. Russell says:

      Mariann, there’s no one good definition of “use for commercial purposes” in this sort of situation, but it generally means more than an indirect “perhaps someday you might buy my book or hire me” type of situation. The cases where commercial use has been found have been more direct — use for advertising (including brochures or business cards), for example.

  5. Judy, thank you so much for your clarification of these photography issues. In pursuing family history research, I’ve experienced as much frustration over the more specific cemetery issues as another of your readers mentioned yesterday (in regard to the Michigan cemetery difficulties). Framing the issue as you did provides actionable guidelines for the amateur researcher.

  6. Amber Goodpaster Tauscher says:

    Judy, thank you so much for taking the time to answer my questions and even taking it a step further to discuss the issue of people in photographs. This is the exact advice I was seeking!

    Thanks again!
    Amber

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