Have you seen the now viral photo shoot taken in a large-scale home improvement retailer? The photographer took a number of pictures of a model posed before various backgrounds: a wall of paint chip samples, an aisle full of bright lighting fixtures, a cascade of ferns in the garden department and the plain, industrial aisle all by itself. (See examples here.) Sounds interesting, right? A cool backdrop and a free location—but what are the legal ramifications?
Know Store Policy
While places like Home Depot and Lowe’s may have policies about conducting photography on the premises, if a store doesn’t allow photos at all, then any photo taken in that store from which the identity of the store is ascertainable is proof that you, in essence, have trespassed. Fortunately, a Google search of a particular retailer may help you discover whether that store has a photography policy. When in doubt, ask the store manager.
Ultimately, trespassing is the least of your problems. Retail stores that prohibit photography typically do so for trademark reasons, and trademark is all about identity. To what degree do your photographs identify where you took them or what products are in them?
Degree of Risk
Some of these shots pose little to no potential risk. The picture of a model in front of ferns in the garden department could have easily been taken in a forest, for all the indication of corporate identity it gives—there’s no way you can tell it was taken in a retail store. The image of a model in front of a number of bright lights is similarly safe. The fixtures themselves—the lamps, along with their boxes and price tags—are obscured or blurry, and it’s difficult to tell where the picture was taken (although anyone wise to this trick may guess).
Other shots could cause problems. The picture of a model before a wall of paint chips, for example, begins to venture into risky waters. Plenty of places have walls of paint chips on display, but it’s clear that in the image gone viral, it was at least taken in a home improvement store. Anything else about the paint chip display that identifies a particular retailer—the font on the display text, the particular layout of the chips, even the color of the wall behind the chips—is something that could cause a problem. The picture of a model on a cart in the middle of the aisle, however, is clearly in dangerous territory. It’s apparent from the cart and the merchandise around the model that the picture was taken in a retail store, and some of that merchandise even displays visible logos or distinctive packaging. The cart itself is potentially distinctive enough to identify the retailer all on its own.
The reason why retailers may have a legal claim against photographs that contain such indicia of their identity is that such photographs may imply some sort of a business connection. If you’re taking photos in a Home Depot, after all, then it’s reasonable to infer that Home Depot sponsors you, or hires you, or is in some other way affiliated with you. And Home Depot doesn’t want anyone making that inference. No offense! What’s more, a home improvement retailer like Home Depot will have plenty of backdrops that are entirely generic, like the leaves in the garden center, but other retailers may have the distinctiveness of their corporate identity woven so tightly into every part of their stores and displays that it would be nearly impossible to take a picture that doesn’t in some way identify the retail location. Imagine, for example, doing a photo shoot in an Ikea—nearly every product is readily identifiable as an Ikea product merely from its appearance, especially when presented in the context of an Ikea display.
The remedy for all of these worries, of course, is to simply get permission from the retailer in the form of a location release. This is a document from the owner of the property saying that you have permission to shoot in a particular location. A location release can be a relatively easy thing to get from smaller retailers, but a larger retailer may give you more trouble, if only because it may not have the time or inclination to respond. This could even be a good thing, as any proof that you reached out to the retailer to ask permission will help turn things in your favor should you actually have to go to court.
Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Arce Stark Law LLC, at arcestarklaw.com.
This article is for informational purposes only. It is not intended and should not be construed as legal advice. Contact a lawyer.