Originally published on January 26, 2018 in Rangefinder Magazine

Some readers may have noticed a trend recently of photographers staging mini-photoshoots in large retail stores, such as Lowe’s or Home Depot. It makes sense, in a way; retail stores often have striking displays of paint chips, lighting fixtures, furniture, or anything else that can make a great backdrop for a portrait or fashion shot, and it doesn’t cost anything to pose and snap a few pics. But are there legal ramifications?

The first and most basic issue is simply whether that store wants you there. Large retail stores may have policies about photography on the premises, and 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, trespassed. Fortunately, this is an easy fix - just do some research. A Google search of a particular retailer may give some answers about whether that store has a photography policy, and you can always ask a manager if you can’t find information anywhere else.

But trespassing, while the most basic potential issue you may face, is ultimately the least of your problems, and the italics above are the crux of the real issue. Retail stores that prohibit photography typically do so for trademark reasons, and trademark is all about identity. Ask yourself - to what degree do my photographs identify where I took them, or what products are in them? That is the degree of your risk.

This trend may have begun with a now-viral photoshoot undertaken in a large-scale home improvement retailer, and the photos from that particular shoot may bring us some insight. 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.

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 this photograph 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! But Home Depot just doesn’t know you well enough to hop into metaphorical bed with you. 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, taking a photoshoot in an Ikea - nearly every product in any Ikea location 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, which is simply a document that you have permission to shoot in a particular location, from the owner of that property. 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.

Matters of trademark and especially of trade dress - the identifiable aspects of a company’s decor, interior, or product packaging - can be complex. Always make sure you’ve consulted with an attorney before embarking upon any legally questionable endeavor, even if you know you’ll get a good shot for free.