I am a hobby photographer who occasionally posts picture I have taken to 500px website to see if they might sale. I visited a privately owned public park recently and photographed a strange tree. The photo turned out great and I posted it to the website 500px, but did not put it on the Marketplace for purchase, I was in contact with the owners of the park to see if they would sign a property release. I sent them a low resolution file of the tree as they asked. I finally heard back from the owner, who said that I would not be authorized to sale the image due to a contract that they have with another company who owns rights to a different tree on the property. "To much grey area." After receiving the email, I visited the Parks Yelp page and found my image of the tree posted on their page in the Parks Photos as "Visitor Submitted Photo." I did not submit this photo to Yelp. They are now using my low resolution photo that I submitted to them to promote their park.
A photographer who creates a unique image automatically owns the copyright in that image as soon as it's "fixed in a tangible medium of expression." Merely transmitting a copy of it to someone else doesn't divest the photographer of the copyright.
If this is important to you, it's time to engage a local attorney who's knowledgable about copyright issues and Internet law for confidential advice.
This posting is intended for general education and isn't "legal advice." It doesn't create or evidence an attorney-client relationship. You are encouraged to engage an attorney in the pertinent jurisdiction for confidential legal advice on matters of any importance. Do consider marking selected Answers on this forum as Helpful, and one as a Best Answer. -Gerry J. Elman, J.D. Elman Technology Law, P.C. Swarthmore, PA
You most definitely own the rights to the photo and can preclude the park from displaying the photo unless you submitted it with automatic licensing terms attached to the website.
There are some facts we would need to offer a conclusive opinion, but I agree with my colleagues. First, you most certainly own the rights to the photo and UNLESS there was some inference that you gave permission for their use you should have no problem stopping them form using it online perhaps sending a DMCA take down request if necessary.
Next, if this was a public place then you don't need their permission for anything. So long as you were not violating some contractual terms like those that might attend an admission ticket to enter into a sporting event, etc. then you are in your rights to photograph the park and they have no rights to any of that.
If this is a serious matter for you, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
As my colleagues note, because you took the photograph you own its copyright. Your rights in that copyright were not lost or impaired by uploading the photograph to 500px.com. To remove it from Yelp you can send that company a "DMCA takedown" notice [visit http://www.yelp.com/static?p=infringementpolicy to learn how].
As for the park owner, it very likely has no legal right to prevent you from publishing -- or even selling -- a photograph of a tree growing within its park. Unless you agreed to an enforceable contract provision that expressly forbids publishing photographs taken in the park, all park visitors may lawfully do so. In short, you didn't need to ask permission -- and the park owner's denial of your request is legally meaningless. Speak with your own Hawaii-licensed intellectual property attorney, however, because there are always other facts in play. Good luck.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
As the photographer you own the copyright to the photograph. You may have compromised your rights by uploading the photo to the 500px website, by agreeing to their terms of service, which need to be analyzed in detail. Unless you gave away your rights, which I suspect that you did not, you or your attorneys can send a demand letter to the park and ask for he image to be taken down and to be compensated for the infringement. Your attorney can also send a DMCA takedown notice to yelp or other hosting companies that may host the copies of your photograph. If you have not done so, you should register the copyright to your photograph.
For more detailed advice, I recommend that you contact an experienced Copyright Infringement attorney to advise you in confidence about your options and potential costs. Many IP specialty firms, like ours, offer an initial free conference by telephone, video conference or in person if you are available locally and would be happy to speak with you. Call and speak with an experienced Copyright Infringement attorney who can assist you.
Mr. Sack's postings on Avvo are of a general nature, based on the facts provided and are not intended to be taken as legal advice or to establish an attorney-client relationship.
Like my colleagues have said, unless you agreed to give up any rights since you took the photo, you are very likely the holder of all right, title, and interest in the copyright of the photograph. It doesn't matter what other agreements as to other trees the park has made with any third parties. The reason why is that copyright protects expression, not the right to photograph physical objects (any so-called 'gray areas' notwithstanding). So your photo can't possibly be infringing any one else's copyright as long as it's your original work (not to mention that copyright doesn't protect the exclusive right to photograph physical objects). If anything, the park owner might (and this is a remote "might") be able to legally prevent you from using the park's name in identifying the photo if any trademark rights are involved - or might prevent you from photographing anything on their property in the future. But as to the copyright, they do not own it if you took the photograph with your camera yourself, even absent their permission to shoot photographs on the property. And if they are using your photo without permission on Yelp or on any other website or medium, you should be able to successfully assert your rights in that photo, if so you choose (you might need to hire an attorney or you might be able to get Yelp to remove the photo by requesting they take it down under the established DMCA take-down procedure - either way, some of your time, effort, and some money will be required).
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