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Property Releases

A Subject of Urban Legend

By Richard Weisgrau and Victor S. Perlman

Unlike the subject of model releases, the whole subject of property releases is filled with more urban legend, assumption, and myth than hard law. Hopefully, we all know that using a person's likeness for trade or advertising purposes requires a release. That is because people have a right of privacy, governed by state law, not federal law, so there are fifty different rules. For the most part, they tend to say basically the same thing: that you need a release to use a person's likeness for trade or advertising uses. However, property has no right of privacy. So why is a release needed? It's a good question, but one that requires a complicated answer. ASMP has never seen a statute or legal case that requires a release for property. The recommendation that you get one is based upon two legal theories. Below, we use a house as the property in question. Remember that the theory applies to property other than real estate. It can apply to pets, cars, and other personal property.

The first theory is that a person's identity might be connected to the property. Take a picture of a house and use it in an article about drugs users, and the owner might get very angry. Angry enough to sue because everyone on the block knows whose house it is. Since the house is not actually connected with drugs, the image was used out of context and paints the owner in a bad light. If the owner sees the use of the image as defamation of character, a lawsuit might be the response.

The second theory is that there is an offense called conversion, which means that you use another's property to your own personal gain without the owner's permission. It is a bit like copyright infringement, which covers intangible property (the legal rights granted by the Copyright Act), except conversion covers tangible property (things you can actually touch and see). If I rent out your house to somebody while you are away, without your permission, I have converted it to my personal gain. That is conversion. The question is this: is it conversion if I rent out a picture of your house for an advertisement without your permission? The picture of your house is not your tangible property, but the house is. Is the photo of the house the same as the house? We know of no case that has ever settled those kinds of questions. ASMP advises that property releases be acquired whenever possible because we don't want you to be the test case.

What if you get the release to use a photo of a house, but then the ownership of the house changes hands? Is the release still binding? We would say yes, as you got it from the proper owner at the time. If ownership changes, that proper owner is probably obligated to tell the prospective owner of the permission he gave you before the sale is made, so the prospective buyer can decide if he wants to purchase under that condition. Does this mean that a new owner won't sue you? By no means does it mean that. What it means is that you have a defense if you are sued. The courts will sort it out. The problem is that there is no case law on these situations, so the courts will have to make it up as they go along. That is the most expensive kind of litigation-fighting over how to apply law that has not been applied before.

If you want to make sure that your release will protect you in spite of changes in ownership, you have to do whatever the law of the state in which the property is located requires in order to have the release "run with the land." While that varies from state to state, typically it means that the release should:

1. State that it binds the owner and his heirs, successors and assigns
2. Be signed in front of a notary public and contain the sort of legal "acknowledgment" that notaries typically sign and seal ("On this _____ day of _____, 20__, before me, a Notary Public for the State of _________, the undersigned officer, personally appeared ________, known or satisfactorily proven to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged that he executed the same for the purposes therein contained. In Witness Whereof, I have hereunto set my hand and notarial seal...")
3. Be recorded in the same place where you would record a deed to that property.

Just having the release state that it binds the owner and his heirs, successors and assigns will, as a practical matter, probably be enough to convince most subsequent owners to go away, and might even be enough to protect you in a lawsuit. That is why you will find this language as the last sentence in ASMP's property release form.

© Richard Weisgrau & Victor S. Perlman/ASMP

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