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'10,000' images in National Trust rights controversy

Discussion in 'News - Discussion' started by CSBC, Apr 29, 2009.

  1. halftone

    halftone Active Member

    Simple question, complicated answer... but there is no risk of this. NT do not own the photos, the photographers do, even if they were trespassing. Alamy, as with any agency, asks photographers to warrant the status of submissions (as model/property released or not + their own copyright) and then protects itself via T&C's that hold the photographer liable. Unreleased images are only offered for editorial use.

    For an ad campaign requiring NT endorsement or merchandising, the buyer would, unless they are daft, ensure the release status meets their needs before purchase.

    If the photographer lied the buyer would have a claim against Alamy not only for refund but also any costs incurred, but Alamy would hold the photographer liable under contract. The photographer also might possibly be open to a criminal case of fraud. All the stuff in the next par. applies too... The buyer would only incur liability if they proceeded without getting rights sorted. Then NT might have a civil case against them for defamation, depending on the context of use. Alamy would not be in the frame, but they'd no doubt sever representation of the photographer and be able to sue for breach of contract terms if they had any losses to recover.

    For editorial use, no liability would arise for the buyer. Again Alamy would hold the photographer liable. NT could possibly do one or more of the following to the photographer:
    - try and bring a criminal prosecution under byelaw
    - sue for trespass and claim damages,
    - try and enforce their contract terms and claim damages
    - contest IP ownership. This is pretty weak given the absence of copyright in buildings, but in some circumstances the courts have assigned economic copyright (the rights to all income) to a plaintiff whilst acknowledging that author's copyright and associated moral rights belong with the creator.

    None of these are likely to be worth the ink, let alone a lawyer's time because editorial rates are puny amounts of money.

    Property releases are widely used to try and avoid this sort of mess but there is no reason to believe they have any validity in UK law. It's different in USA because of copyright on recent buildings and certain others and the existence of statutory damages for registered copyrights (up to $150k).

    Here the legal rights of landowners are defined in common law, damages are limited to provable losses, and any contract that goes beyond that is open to challenge as unfair. The NT insists you need a property release for any commercial use (in the broadest sense of 'commercial'). I've never seen one so I don't know what it says, but it's not unlikely it's either redundant or unenforceable. Basically they're just granting permission for photography in exchange for some money, as far as photos are concerned.

    Expensive problems will arise if the buyer publishes trademarked logos or other IP of NT, and/or makes false claims of endorsement.

    But NB I am not a lawyer and this is not legal advice.
     
  2. Rushfan

    Rushfan Well-Known Member

    I haven't read this entire thread so apologies if what I'm about to say is a repetition of previous responses.

    I agree that the NT is well within its rights to stop photos taken and sold for financial gain (i.e. by professional photographers) without receiving a share of the royalties.

    However, I am an amateur photographer and a National Trust member and so is my wife. Generally speaking, we feel that the NT does a fairly decent job of preserving the properties in their trust. However, we are only members because we enjoy going to their properties, with our cameras, to take photographs.

    Their current stance on taking photographs of the insides of properties would be laughable if it weren't so pathetic. The feeble excuses they trot out about 'health and safety' and 'security' issues are nothing more, in my opinion, than a scam to force us to buy their over-priced guide books. That said, we will abide by their stance insofar as it's the outside of the houses we're most interested in.

    However, if they were to try to impose any restrictions on taking or displaying photographs (in any format or on any medium) we would simply cancel our memberships.

    It is that simple. The National Trust needs our money more than we need a collection of follies and old houses - however beautiful or historically significant. There are plenty of photos taken by the NT's own photographers if we need to look at them so, if the NT ever locks horns with us amateurs, I strongly recommend that we vote with our feet and withdraw our financial support.
     
  3. zuiko

    zuiko Well-Known Member

    I think there is a middle ground here, editorial use after all is often used to promote a particular location ie. it is in effect a free advert for a NT property. This in turn means more people go to certain NT locations. Selling an image for a calendar or similar use commands a much higher fee and i can understand the need to protect this avenue of money stream. It is easy to place restrictions say for editorial use only on any image and i think this is a viable alternative. In the present climate of redundancies in the newspaers and printing and falling revenue in sales of licensed images now is not the time to think of stock photography as a career option.

    David
     
  4. msknight

    msknight Member

    I had a run in with the NT on this issue in 2007 after attending a paid for photographic lesson in which we took pictures within the grounds of one of their properties. This is what I blogged about it. Seems that as long as they restrict this to within ticketed areas, they've got a point. If they try and enforce it outside these areas they could loose a lot of public support if this hits the national press with a negative tone, and that would really mess things up for the nation.

    ---------------

    Article published here http://shutter-fug.blogspot.com/2007/08/national-trust-wont-work-with-anyone.html

    I found out, the hard way, that the National Trust photographic library won't work with anyone. Even if the plan has commercial merit for the benefit of both parties, you can be sure that the photo library unit will not let you gain any benefit.

    Basically, it comes down to that if you take a picture while on an area of National Trust land which would require a ticket or purchase to get to, then you will not be able to sell the image.

    In fact, you are actually not allowed even to take a picture whilst in such an area.

    Local venues don't have the power to grant such ability. Taking pictures within such areas is, apparently, reserved for their photographic library only. That is probably going to be news for all the people I see happily snapping pictures whenever I visit such a property. I've never entered a property and seen any such warning about not being allowed to take photographs beyond the point of ticket entry; only for individual buildings whilst on the land. This is the National Trust cleverly operating double standards. I put it down to either lack of communication and the local venues either not knowing the national rules, or deliberatley chosing to flout them for risk of upsetting and turning away an ever more snap happy paying visitor.

    This state of affairs came about after a conversation with staff from the photographic library. My actual conclusion was that the National Trust is knowingly only enforcing the rules when it is most convenient for it. The safest thing to do is not to take a camera.

    (edit: after further conversation with the Photographic Library team, apparently amateur/personal photography is allowed but how they distinguish from a pro with a quality compact and an amateure with a DSLR is a bit on the intriguing side. Also, how they police the images is another odd question.)

    The photo library states that is trying to protect the commercial viability of their image library. The ultimate question, therefore, is what do they do with that library which makes money for the National Trust? What is it about that library which makes it worth protecting? It also raises the question that if the library has such a large collection of useful images which are available to local sites, then why do venues ask for help creating photo albums and the like? Don't they know that they are asking their visitors to voluntarily admit to having broken the rules on photography and open themselves up to the possibility of legal procedings?

    It starts to sound as if the only audience for the photographic library is actually the venues themselves, and that the library thus has the power to dictate its customers to purchase only from itself. If that is true, then it would certainly be a sad set of affairs.

    The whole thing is a mess, if you ask me. The national rules hamstring the local venues quite effectively from undertaking what could be profitable ventures, and allows the various sections of the National Trust to operate double standards; some venues knowing, and others not. With some venues having blurred boundaries between attached woodland and garden areas the boundaries get even more blurred. The upshot of all this is that if the National Trust don't like you're face and want to prosecute, then you're in trouble.

    All this might seem pathetic and picky, but with the increasing amount of U.K. herritage coming under the protection of the national trust, it brings me to mind of a few lines from The King and I ... "If allies are strong with power to protect me,
    Might they not protect me out of all I own?" It does concern me that with the prices of tickets being quite high already in relation to other venues, that the National Trust could soon be in a position to hold a gun against the financial head of the people of the country for access to the nations own herritage ... the very people who it relies on to volunteer their time to support their operations.

    I am concerned that the National Trust is developing a very dangerous attitude. Just look at what the National Trust have done in Studland since they inherited the land there; persecuting naturists. (The National Trust have ignored my e-mails for explanations. As a member of the national trust I believe I am entitled to know the aims and objectives of what I am a member of.) These people hold the nations heritage in their hands, and they are dictating the kinds of people that they prefer to be utilising that heritage; that is a very dangerous thing to do. Time will ... as usual ... tell.
     
  5. zuiko

    zuiko Well-Known Member

    Perhaps we should look at the NT from a different perspectice, that is the accounts they publish. What is their revenue from their own library? What has happened to it over say the last 15 years. Does this stance over images relate to a fall in income from picture sales. Or is there a steady increase in revenue and this stance on photographers actually has nothing to do with protecting income but the fact that they have the Power to do so.


    David
     
  6. msknight

    msknight Member

    I agree. The NT need to be 100% clear on what is and isn't allowed, and also post notices at the entry to properties. The three words, "No Comercial Photography" should be enough to get the message over to people, perhaps with a picture of a camera over a £ or $ sign in a "no entry" sort of sign.

    Let them see what that does to passing trade!

    They need to make it clear what their objectives are, as you say, zuiko. As a body entrusted with looking after the national heritage, they are not in the privaleged position of being able to make the rules as they like ... they HAVE to make their reasoning clear; to stand up and be judged; and if they don't do that, then that would be a judgeable statement in itself.

    I can understand the ticket-entry gardens and the like; the skill of the gardeners, stonemasons and the other highly skilled people who keep our nations heritage alive has to be paid for ... but if they start going after people who take pictures on non-paid grounds they're on shaky territory; the library promised me that wasn't going to be the case however. We can just sit back and judge them by what they do.

    Do we get access to see what images they are challenging?
     
  7. zuiko

    zuiko Well-Known Member

    Well, as i said in an earlier post i had some images mainly of rhododendrons that i took before i was an Alamy contibutor that have been "red carded". My challenge in June is to go back to Sheringham Park and take images from the surrounding fields which NT do not own and resubmit. I will also take "location" shots to prove that i was in fact not on NT property when i took the images. My way of protest but of course if hundreds of photographers did the same and could prove where they were when they took the photograph NT would have a bigger problem.

    Incidentaly, London Underground are just as defensive of their logo, which is in many ways a fairer arguement. It is their brand, their identity which they have created and want to protect.

    Perhaps we should contact say "Countryfile" and they could do a piece of "photography the countryside" what are your rights etc. A public debate on TV is something i am sure NT wouldn't want.

    David
     
  8. msknight

    msknight Member

    Wow. That is disgusting. It should be up to the NT to prove that you were on NT property when you took the image; not you to prove otherwise.

    This is turning our freedoms in to a joke.
     
  9. Bettina

    Bettina Well-Known Member

    Well, is editorial photography "commercial photography"? It's a mushy term.

    Yes, London Underground is very protective of it's logo and Alamy culled quite a few a while ago - alongside Royalty Free images of the "Gherkin". However, when you look abroad, you will see that some photo libraries have images that only feature the LUL logo - in fact, it looks like some photographers covered every bleeding station. I'm sure there will also be lots of NT images if you dig deep enough.

    So, Alamy complies but what about libraries that don't or won't bother. How is the NT going to police this? Can you put a UK library at a disadvantage to one that might be based in Xanadu for example?
     
  10. msknight

    msknight Member

    Well, I've sent this to the NT. We'll see what comes back. You know, the only thing I can think of is that in times when people aren't actually buying that many images, this is the NTIL's easy way of knocking out the competition ... by changing the rules.
    --------------
    Dear Sir/Madam,

    I would be grateful for this mail to be forwarded to National Trust higher management rather than to the photographic library.

    I am concerned about the actions of the National Trust regarding photographs which are taken on National Trust land and are then used commercially.

    I had an issue with the photographic library in late 2007 in which it was determined (by telephone, unfortunately) that photographs were taken in roughly three broad categories...

    1) Inside properties - no photography allowed except by prior arrangement.
    2) Outside grounds within ticketed entrance - allowed for personal use but any other use by prior arrangement.
    3) Any publically accessible land, no restriction.

    It is my regret that the conversations I had with the photolibrary were by telephone and I do not have these definitions in writing anywhere.

    I am now reading an article in Amateur Photographer about how the National Trust has now contacted Alamy and had a good few thousand images, "red carded." Ironically, rather than place the burden of proof on the National Trust, the burden of proof is on the photographer; which makes no legal sense.

    It is of great concern to me that as the land owned by the National Trust for the good of the nation, is getting considerably larger, that while I support rules 1 and 2 above, that if rule 3 has changed so that no commercial photography is possible anywhere on any National Trust land, then this is an outrage.

    I did notice on the, "Photographers," page of the NTPL site, that the rules have been hurredly changed. Notice the now double full stop at the end of all but one of the paragraphs.

    Given the amount of land that the National Trust owns, and that public footpaths go through even some properties where ticketed entrance is required, the National Trust is potentially putting itself in a very precarious position of public opinion and is effectively forcing a re-evaluation of public support for the organisation.

    I therefore ask that management become seriously involved in what the photolibrary are doing, what proof they have in order to red card various photographs (and cause emotional and financial distress to photographers) and once and for all publish a precise guidance on what is and isn't allowed rather than the very wishy-washy, "does not permit photography or filming at its properties," which could mean anything.

    As a National Trust member and an amateur photographer, I request urgent action on this subject; as it not only affects me but has stirred serious discussion among the nations photographic community.

    Yours sincerely,

    Miss Michelle Knight
     
  11. zuiko

    zuiko Well-Known Member

    I do have images of a NT property which i did take from a public road and they have not asked for them to be removed.


    David
     
  12. msknight

    msknight Member

    Well, if anything this will force them to better define what they're up to. Time they put their colours on their sleeves. I've contacted them on various other issues in the past and they'll happily respond until they are backed in to a corner, and then they usually stop responding.

    I've been involved in a few areas these last few years where rights have been taken away; I've learned the hard way that if people don't make a fuss, then rights will be lost. If I hadn't been working, I'd have been at the recent protest in London. I have been badgering my MP for some time with all the abuses of photographers and called for a removal of the terror legislation. Nothing has happened, though.

    Also, if the London Underground logo is part of a scene, then they've got no right to enforce anything, IMHO; that's just heavy handed nonsense. It is a part of society at the time, just like any advertising billboard or shop front in a post card from whatever age.

    Look ... as a community, we need to do something. Can AP organise a petition, even one on Downing Street's own web site? I'd happily sign a petition for the removal of the terror powers granted to the Police.
     
  13. Barney

    Barney Well-Known Member

    Is it really? Or is it merely the process of an institution protecting their freedom to restrict others profiting from their assets, just as we all can. The NT haven't got special priviliges over and above other organisations or individuals
     
  14. Benchista

    Benchista Which Tyler

    Except in that they can create their own byelaws. However, I do think your analysis is correct.
     
  15. msknight

    msknight Member

    Like I said in the letter, anything past ticketed areas I've got no problems with. But the NT own vast swathes of land all over the UK across which many, many public footpaths run. We're talking some of the most picturesque countryside in the UK ... if they start restricting those pictures then yes; I deem that as a serious problem regarding our freedoms.

    We have the freedom to photograph from publically accessible land; if the NT weigh in on that, we wouldn't have the freedom to photograph from NT land which is publically accessible and not only that, we'd have a hard time knowing what is NT land and what isn't.

    Tne National Trust cares for 11 of the Snowdon peaks, for example ... how about no more photography up there? A landscape pnotographer would have a problem making a living and the NT would have a monopoly. In my book, that's an issue.

    The NT reply at the moment is that the letter has gone up to management as I have requested, and not to the photographic library.
     
  16. zuiko

    zuiko Well-Known Member

    I do think there is a middle ground where through negotiation between NT, Alamy and photographers everyone could have benefited.

    Deletion of 10000 images just means there is less choice for the picture buyer, just because you have hobbled a picture library it doesn't always follow that you will pick up more sales. The beauty of Alamy is the obscure and little visited which the NT library struggles to cover in its own library.

    Horsey windpump Norfolk has 12 images with the NT, Alamy has 300 to prove a point.

    David
     
  17. Barney

    Barney Well-Known Member

    But you have no freedom to photograph for commercial purposes on any privately owned land (in England & Wlaes at least, I'm sure about Scotland, nor N.I.) Whether you need a ticket to access the land, or merely taking up a right of way, it is the owner who has the freedom to restrict photography.
     
  18. msknight

    msknight Member

    The National Trust are in a very precarious position. They are funded in a considerable number of ways ... I for one am a member, for example. Could you thus say that I have shares in the land? That, by the way, is a demonstration that this isn't quite a straightforward issue as a private landowner.

    I don't think the NT can be aproached in this situation as just like any other land owner. The way they are funded, the legacies that are left to them, the national membership, also the fact that their open land isn't easily signposted, has no easily recognisable borders unless you search for them, no signs prohibiting photography and has public rights of way all the way through them.

    I believe that the barrier is an important distinction for any photographer to argue that they are, as far as they are concerned, on publically accessible land. Even something like a small symbolic plastic chain fencing is enough for security guards in London to give a photographer the nod to get their leg the other side of it.
     
  19. Benchista

    Benchista Which Tyler

    Fine, but these are all issues it's best to take up within the NT, IMHO. The NT are entirely within their rights in what they're doing, but that doesn't mean it's necessarily the right thing for them to do. I can't help feeling that a campaign by members is going to have a lot more effect than some of the inaccurate tabloid-style nonsense we've seen on various websites elsewhere.
     
  20. Terrywoodenpic

    Terrywoodenpic Well-Known Member

    A land owner has indeed got that right. but it is up to him to police and enforce it. and if that fails he can sue. Not for your taking a photograph but for damages. This is very hard to establish, and very few juries would uphold this.
    unless you use the photographs in a way that defames him; it would be unlikely to be worth his while to bring it to court.

    The right to roam laws give the right to take photographs on those places. and that includes tracts of NT land.
     

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