Photographers and Private Property

What are the Rules for Photographers on Private Property?

While photographers must generally obtain a signed release prior to publishing for-profit photos of individuals (with some exceptions), entirely different issues arise where the subject of the photo is private property. Although laws regarding the right to privacy are varied, most jurisdictions seem to agree that the use of a photo of private property does not constitute an invasion of privacy. The underlying rationale is that real property is not considered as intrinsically “private” as an image of a person. Nevertheless, property owners continue to seek ways to control the use of their private property. This form of invasion of privacy is often the subject of celebrity lawsuits.

Barbra Streisand Lawsuit

Between 2002 and 2004, photographer Kenneth Adelman had taken over 12,000 photos of the California coastline for his Web site to “create a permanent record of the California coastline.” While flying 2700 feet above the Malibu coastline, Adelman snapped a photograph that depicted numerous homes, including that of Barbra Streisand. On February 10, 2003, after unsuccessfully persuading Adelman to remove the photo of Streisand’s home from the Internet, Streisand’s attorneys sent Adelman a letter threatening legal action if he did not “cease and desist.” Subsequently, following additional exchanges, on May 20, 2003, Streisand’s attorneys filed a lawsuit alleging that Adelman and others involved in the project had invaded her privacy by posting the photo on the Internet and offering it for sale (as was the case with all the photos Adelman had taken).

Streisand’s complaint indicated that she had apparently taken significant measures to protect herself from those who “wish to pry into every aspect of her life and people who have threatened her personal safety.” For this reason, she purchased a residence that would offer her “protection from unwanted intrusion into her domestic environment.” The complaint further details some of the measures she had taken with respect to her home in line with her goal of privacy. The complaint also addressed how the photo on the Web site compromises her privacy. Specifically, Streisand alleged that the photo reveals a high amount of detail regarding her home, such as the layout of her pool and the positioning of her outdoor furniture, seemingly providing a “road map into her residence.” However, on May 4, 2004, the trial court issued a ruling indicating that Adelman and the others had not invaded her privacy for the following reasons:

  • The nature of the intrusion was not invasive. The court noted that the photos were taken from the air, far away from the residence, and that the photo does not depict any recognizable individuals.
  • Adelman did not act in a manner “highly offensive to a reasonable person.” The photo was taken for an “ecological history project” and with no “other purpose in mind.” Very few photos of the residence had been sold as of the date of the ruling. Further, Streisand had already consented to the publication of a similar photo in a magazine.
  • Nothing recognized by law as being private was disclosed. The photograph is merely a depiction of the coastline. It reveals nothing more than structures common to Malibu: tennis courts, swimming pools, a backyard, etc.

One of the themes running through the court’s decision was the fact that the photograph was taken from a public vantage point. For this reason, as with police searches or observations, the court held that there was no invasion of privacy.

Other Considerations

Despite the fact that state law seemingly offers little protection against property owners with respect to the privacy of viewing or photographing a home, many recommend that releases be obtained from property owners prior to taking such photographs. In addition, federal copyright laws may come into effect in certain limited circumstances depending on the character of the property to be photographed.

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