Dixie Plantation Case
By Andrew Hudson Published: August 15, 2012 Updated: February 4, 2016
The beautiful trees of the Dixie Plantation in South Carolina were the subject of the most significant U.S. court case involving trespassing for commercial photography.
“Plaintiff alleges that Defendant, a prominent professional photographer, trespassed onto Dixie Plantation to take a certain picture, entitled ‘Plantation Road,’ which he is now offering for commercial sale.”
— College of Charleston Foundation v. Ham, 2008
Photographer Benjamin Ham visited the Dixie Plantation and took photos, despite the signs saying “No Trespassing” and without getting permission for commercial photography. When he sold pictures of his photos, he was sued by the plantation’s owner, The College of Charleston Foundation.
The lawsuit, filed in 2007, alleged “trespass, invasion of privacy, and conversion, and sought an injunction prohibiting further distribution of the photograph and actual, consequential, and punitive damages.” A district court dismissed the conversion and invasion of privacy causes of action but allowed the trespass cause of action to proceed.
The case was ultimately settled by mediation which was confidential, but notably the photo remained for sale.
Here are some quotes from the district court:
“the Defendant voluntarily entered Dixie Plantation, and did so without Plaintiff’s permission.”
“[The Plaintiff also alleges that] as a direct and proximate cause of the Defendant’s actions, the Plaintiff lost use of its private right to the property and lost use and exclusivity of a unique image and representation found on Dixie Plantation.”
“Defendant does not seem to dispute that Plaintiff, as property owner, would have had the right to refuse to allow him to take the photograph in question and force him to leave the property. The right Plaintiff actually seeks to exercise is the retroactive application of this very same right. This strikes the court as something altogether different than a simple, straightforward claim of ownership over the photograph. Accordingly, Plaintiff’s causes of action do not constitute a transfer of copyright, and said causes of action will not be dismissed on these grounds.”
“The court can see no way in which the publication of a photo capturing a beautiful image like ‘Plantation Road’ in any way ‘bring[s] [invasion of privacy] shame or humiliation to a person of ordinary sensibilities.’ … [thus] Plaintiff’s invasion of privacy cause of action must necessarily fail as a matter of law …”
“if it is a trespass for a photographer to take photographs without the owner of private property’s consent when the owner has at least consented to have the photographer on the property, the court simply cannot see how it would not also be trespass in a similar situation where the difference is that the owner has not even consented to allow the photographer on the property. Furthermore, the issue of physical versus intangible harm does not represent a per se requirement of a holding of trespass, but rather goes to the issue of harm. It is one of the most basic principles of tort law that in order to recover, the plaintiff must show that harm was proximately caused by the plaintiffs actions. Here, Plaintiff has alleged no physical or tangible harm from Defendant’s actions. Accordingly, Plaintiff has stated no claim upon which actual or consequential damages can be awarded by this court.”
“Plaintiff [is] not required to allege a physical harm in order to state a claim for trespass …” “if a plaintiff is in a unique situation where an award of damages will not be sufficient to make it whole again, a court may undertake an equitable remedy such as an injunction.”
“Most jurisdictions … have held that corporations may not bring suit for invasion of privacy.”
“Dixie Plantation currently encompasses 881 acres bordering the Stono River and the Intracoastal Waterway, about 17 miles south of Charleston. The former home of John Henry Dick, a naturalist and artist who drew and photographed thousands of birds, the property was donated to the College of Charleston Foundation as part of Dick’s estate.”