National Trust: photography persecution

[eeyore]

Originally Posted by Paul mabbott

Or were stood on one of the many public footpaths which go through NT property. As you say, I don't think there's any way of enforcing this for landscape or wildlife stuff.

technically thats not so - under the 1949, 1968 , and 2000 access acts being on a public right of way only gives you the right to freely pass and repass by the permitted means. It does not give you the right to do anything else including take pictures - these activities would be covered by whatever bylaw covers the land through which the footpath passes.

[eeyore]

Originally Posted by sidewalkdoctor

I applied for an advertised job with the NT as a "Volunteer Photographer" which meant that I would get a free pass to ANY of their properties as well as a car parking permit & a fleece(!). I fulfilled the criteria for taking & processing photographs & could get away from work if needed in a hurry (remember this is on the IOW) & so got the job.

Upon reading that I was expected to hand over _all_ rights of my pix, I told the poor sod who offered me the job what they could do with both it and the clause in the contract.

I run a similar volunteer photographer scheme for my employer - however we only ask for non exclusive use of the images - asking for full rights puts them on dodgy ground - although it would be perfectly normal if it were a paid position as images taken in the course of your employment belong (normally) to the employer not to the photographer.

I would guess that the NT think that this applies to the volunteer position because you would be given free access and carparking - however that would put them on very dodgy ground vis a vis the mimimun wage legislation because volunteering is not employment - if they argued that you were employed then you would not be definition be a volunteer and would be entitled to the minimum wage and other employment benefits (Volunteering is not a "job" either and it is very poor form to have a "contract" as this also constitutes "trappings of employment" )

[glsammy]

I've just sent them an email asking them to clarify their position on this.
I wonder if they'll bother to reply?

[kiltoncomp]

where is the position on this concerning WAB ?, as there are many photographs of clumber posted on here, will they all have to be removed to comply with the National Trusts new take on photograhy on their (our??)lands?

does this also mean that the forthcoming WAB fungi foray 2009 to Clumber will be unable to record their finds by photographic means ?

judging by the number of people i see with cameras in clumber park alone, then there must be many thousands of what will now be illegal photographs in circulation!

if this does become reality then heres another NT member who will be cancelling their memberships (we have a total of six memberships in the family)

Brian.

[eeyore]

to an extent this is a storm in a tea cup - although the clause does cover non comercial websites i suspect that has more to do with bad drafting than an evil intent.

One very much doubts that the national trust are going to take legal action against someone for putting a picture of their property on a personal web page let alone against another charity such as wab - it is quite clear that their intent is to stop anyone from making money from images of their property, which is fair enough.

Also Wab doesnt fall under the image libraries clause as someone suggested above because wab isnt an image library in that images here arent sold on for third party use.

[kiltoncomp]

Originally Posted by eeyore

to an extent this is a storm in a tea cup - although the clause does cover non comercial websites i suspect that has more to do with bad drafting than an evil intent.

One very much doubts that the national trust are going to take legal action against someone for putting a picture of their property on a personal web page let alone against another charity such as wab - it is quite clear that their intent is to stop anyone from making money from images of their property, which is fair enough.

Also Wab doesnt fall under the image libraries clause as someone suggested above because wab isnt an image library in that images here arent sold on for third party use.

lets hope thats all it is,
in the unlikely event that it does become reality, would photographs taken before this came into effect be included or would they be exempt, with something similar grandfather rights etc?,

[eeyore]

Originally Posted by kiltoncomp

lets hope thats all it is,
in the unlikely event that it does become reality, would photographs taken before this came into effect be included or would they be exempt, with something similar grandfather rights etc?,

Its hard to say as it would be subject to case law - but my suspicion is that it wouldnt be retrospective for publications that had already taken place , but would apply to any new publication regardless of when the photo was taken.

i'd also note that it is about publication or sale without permision, I am a semi proffesional photographer and in the past i have gained national trust permission to take comercial pics on their land, for a fairly small fee (and granting them non exclusive use) - so pros wont be badly effected by this - the only people who it will hit will be image libraries who accept uploads from the general public - hence alamy asking for deletions.

I'd also note that national trust arent alone in this - the royal parks have a similar clause for commercial use , as do areas like trafalgar square - and many private properties.

[Paul mabbott]

Originally Posted by eeyore

technically thats not so - under the 1949, 1968 , and 2000 access acts being on a public right of way only gives you the right to freely pass and repass by the permitted means. It does not give you the right to do anything else including take pictures - these activities would be covered by whatever bylaw covers the land through which the footpath passes.

'Technically' would need to be tested in a court of law. Can they prohibit you from wearing a red hat or from flying a kite as you walk along? Perhaps but I doubt they (or any other "landowner") would try it.
Why? Because any 'offence' would be a civil one therefore the landowner would have no power to make you desist, to impound your photographs (how, on a digital camera?) and would then have to take you to a civil court (very expensive and time-consuming) and then to prove that you had taken a photograph of their land - as opposed to that you were taking pictures of something off of their property or, indeed, that you had taken any photographs at all! I suspect that, if this ever came to court, there would be a campaign to emphasise that the National Trust is exactly that - it belongs to all of us.

[eeyore]

Originally Posted by Paul mabbott

'Technically' would need to be tested in a court of law. Can they prohibit you from wearing a red hat or from flying a kite as you walk along? Perhaps but I doubt they (or any other "landowner") would try it.
Why? Because any 'offence' would be a civil one therefore the landowner would have no power to make you desist, to impound your photographs (how, on a digital camera?) and would then have to take you to a civil court (very expensive and time-consuming) and then to prove that you had taken a photograph of their land - as opposed to that you were taking pictures of something off of their property or, indeed, that you had taken any photographs at all! I suspect that, if this ever came to court, there would be a campaign to emphasise that the National Trust is exactly that - it belongs to all of us.

bye laws are as you say a civil issue and can pretty much prohibit whatever the land owner wishes.

however the issue relating to what the 1949 act (and subsequent acts) permit has been tested in court and case law has established that all they give you is the right to freely pass and repass as stated in the act ( the only major addendum being that wheelchairs and class one and two mobility vehicles qualify as pedestrians).

doing anything else has been ruled to be an act of trespass against the landowner. The most common case being cycling on footpaths. Now of course tresspass against the landowner is also a civil dispute not a criminal one - so long as it is not agravated by the commision of another illegal act such as invasion of privacy, harrasment, or criminal damage - This ruling has been used to charge papparazzi , hunt sabateurs, cnd protesters and assorted others with agravated trespass which is a criminal offence.

However none of this is truly germane to the issue under discussion as the key point is not about them stopping you from taking photos (as far as i know there is no intent to do this outside of stately homes) but to stop people from selling or publishing them without permission.

the footpath thing comes up only in as much as to say that persons on a footpath are still covered by the bylaws governing the land through which the right of way passes - this has also been tested in case law (though not specifically relating to photography).

Therefore although you are correct to say that they would still have to prosecute you in a civil court for breaching the byelaws (which are essentially conditions of access to their land) it would not be an automatic defence to say that you were on a PRoW ,( except in cases where the byelaw prohibits an action allowed on the PRoW , for example you cannot be prosecuted for breaking a byelaw forbidding horseriding , if you are on a public bridlepath , restricted byway, byway, or highway at the time) but it would be to demonstrate that the picture was taken from outside the property boundaries (as beyond the boundary the byelaws dont apply.)

As a point of interest the other possible route (generally speaking as this isnt someing NT have done thus far) is for a landowner to assert that he has intellectual copyright to the "image" of his building and thus any publication or sale of images of it is a breach of copyright. There is a test case currently going through the courts relating in this regard to the london gherkin. However this would not be possible for 99% of NT properties as the trust didnt design and build them. In theory it could possibly be applied to grounds , though it never has been, but there is no way to apply it to natural landscape.

( Disclaimer: I work in PRoW and am a semi pro photographer so I have a good grasp of both access and copyright law - I am not however a lawyer and i take no responsibility for any action anyone takes based on the above advice)

[pressld2]

No, no, no! The NT are being very clear on this - if you breach their bye-laws you are committing a criminal offence. They have the same powers to create bye-laws on their land as local councils do on theirs and breach of said bye-laws is a criminal offence, not a civil one.

Originally Posted by kiltoncomp

lets hope thats all it is,
in the unlikely event that it does become reality, would photographs taken before this came into effect be included or would they be exempt, with something similar grandfather rights etc?,

Unfortunately, the bye-law they are quoting in order to back up this outrageous policy dates from 1965 so, yes, they can apply it retrospectively for at least the last 34 years.

There is also some suggestion that they are trying to make it apply to photographs of NT land not just taken from NT land. It just keeps getting more and more outrageous.

The bye-law in question comes under the heading of "Hawking" and was intended to prevent visitors to National Trust properties from being pestered by people offering to take their picture for a fee. It was never intended to protect the NT's income from its own picture library and there is considerable doubt about whether the NT can legally do this. See National Trust byelaws in a twist | Copyright Action

My own view is that, unless they get their knuckles rapped and back down very quickly then we need a mass protest similar to the one staged by press photographers recently when the new law about photographing policemen came in. They all congregated outside New Scotland Yard and photographed everything in a uniform that went in or out.

Final point - they don't own any of this land, they hold it in trust for the nation. That's you, me and every other British citizen. Perhaps they need reminding of this fact.

Dave P.

[Jim Ford]

Originally Posted by pressld2

No, no, no! The NT are being very clear on this - if you breach their bye-laws you are committing a criminal offence. They have the same powers to create bye-laws on their land as local councils do on theirs and breach of said bye-laws is a criminal offence, not a civil one.

That sounds highly unlikely!

I thought criminal laws needed to be introduced into the statute book through an act of Parliament. I wouldn't think a qango like the NT could create their own laws, to be tried by a jury in a high court and punishable by a prison sentence.

My understanding is that a 'crime' is an offence against the Crown and enforceable by the police. A infringement of a bylaw is an offence against (say) a local authority and is of no concern to the police.

I'll ask my daughter next time I see her, she's an experienced lawyer - but I expect that as usual I won't get a straight answer from her!

Jim

[Tormentil]

Originally Posted by eeyore

bye laws are as you say a civil issue

Byelaws create criminal offences which can be prosecuted in Magistrates' Courts, they have to be approved by central government before they can come into force.

..... byelaws are made by the local council or other body, but do not come into force until they have been approved (confirmed) by the relevant Government department. After the byelaws have been made, but before they can be confirmed, an advertisement has to be placed in a local newspaper announcing that the byelaws have been made, stating where a copy can be inspected and inviting any objections to be made to the Government department. One month after the byelaws were made, the council (or other organisation) then applies to the Government department for the byelaws to be approved. The Government department, at the same time as confirming the byelaws, also sets the date that they will come into force.

In 2006, the then Office of the Deputy Prime Minister consulted on changes to how some byelaws are made and approved (confirmed) by central government, and how they are enforced. As a result, the Local Government and Public Involvement in Health Act 2007 included provision for the Government to implement alternative arrangements for making byelaws, and for their enforcement through the issue of Fixed Penalty Notices.

A further consultation took place in 2008 concerning the specific byelaws to be affected by the changes, and the new procedures for making byelaws and issuing Penalty Notices.

The 2008 consultation document stated that some byelaws would continue to need to be confirmed by the Government. These include those byelaws made by private companies (so as to ensure that there is democratic accountability), and those which are likely to be controversial, for example concerning fisheries.

[pressld2]

I have a new hero and his name is David Kilpatrick!

He has set up "National Trust Pictures" and makes some extremely good points on the "about" page at National Trust Pictures About NationalTrustPictures.com.

I found out about this through an article on the Copyright Action website at National Trust Pictures - not the NT, not Alamy: | Copyright Action. The last two paragraphs of the first post are brilliant and confirm exactly what Mike said above - the NT are in danger of shooting themselves in the head with this, not the foot.

The NT needs a new motto - how about "For ever, for everyone. Except photographers."

Dave P.

[acherontia]

Originally Posted by wildlifesnapper

Hi,

I think the NT have their own photo library so I guess they want to have the business all for themselves.

Have fun,

neil

AHA - my first thought exactly-

http://www.ntpl.org.uk/index2.pgi
This is becoming so common now - the RSPB has one too. The BBC started one last Autumn Watch in order to have access to free piccies.
Of course I'll forgive the Beeb as they need all the money they can get to pay Jonathon Ross etc...

Scenario -
1- Jo Blow gives his images away in the hope that he can say to his mate - look! I got a photo in the 'RSNT' mag!! Aren't I great!!
2- 'RSNT' gets 100s of 1,000s of images (or more) for nowt and then puts up the membership. But they have to kiss a lot of frogs to get a prince .....
3- The professional photographer ceases to exist . It's already happened - most are having to do it partime.
4- Standards fall (already have) as they are having to employ an awful lot of barely qualified 'frog kissers' who may not be entirely brilliant at recognising what constitutes a good image ....

The NT says -

The NTPL are not currently looking for any additional photographers, either for commissioned work or for stock submissions. Due to the high volume of enquiries we may not be able to reply individually to enquiries from prospective photographers. Unsolicited images submitted may not be returned or considered for inclusion in the Library

Speaks volumes doesn't it?

Acherontia

[eeyore]

Originally Posted by Tormentil

Byelaws create criminal offences which can be prosecuted in Magistrates' Courts, they have to be approved by central government before they can come into force.

yes - sorry i didnt make my meaning clear ( told you i wasnt a lawyer ) byelaw offences are criminal not civil but are usually (in my experience at least) subject to private prosecution , generally by the landowner or his agent.

it is unlikely that the crown prosecution service will be interested in taking the prosecution for transgressing them , or indeed the police be particularly interested in enforcing them. ( come to that its hard enough to get the CPS to prosecute propper criminal cases these days , some cops i know refer to them as the "criminal protection service"

[acherontia]

Originally Posted by eeyore

yes - sorry i didnt make my meaning clear ( told you i wasnt a lawyer ) byelaw offences are criminal not civil but are usually (in my experience at least) subject to private prosecution , generally by the landowner or his agent.

it is unlikely that the crown prosecution service will be interested in taking the prosecution for transgressing them , or indeed the police be particularly interested in enforcing them. ( come to that its hard enough to get the CPS to prosecute propper criminal cases these days , some cops i know refer to them as the "criminal protection service"

I should think all this applies more to images of the houses or landscapes/famous landmarks and it's probably unlikely that they'd enforce it unless Martin Parr makes a famous image of 'fat lady eats ice cream outside Tatton Park' or Andy Rouse publishes 'Kingfisher dives off Alderley Edge' in his blog..... and they make a load of money NT wants into!

Do you ever get tired dancing about like that Eeyore??

Acherontia

[Lancashire Lad]

In my previous post, I said there might have been an unintentional misrepresentation of the NT's actual policy, and that until such time as the matter was clarified, I would give them the benefit of the doubt.

Today, I've spent a couple of hours browsing on some of the vast numbers of bona-fide web sites, and also blogs, (including Alamy, Amateur Photographer Magazine, ephotozine, Flikr, etc. etc), which are commenting on this situation.

It seems that many such organisations & individuals have tried to get a proper response from the trust, with regards to whether this situation will be enforced in respect of amateur photographers merely uploading images taken on trust land, but with no intent of selling or profit gain.

I can find no response from the trust thus far, which would in any way appear to confirm that amateurs needn't worry.

I didn't want to comment further, without being certain of the specific wording of the trusts policy, and have managed to find the relevant statement on the National Trust Photolibrary website (to view, you would need to click on the "Photographers" tab, at this link): -
http://www.ntpl.org.uk/index2.pgi

To quote an extract from that page: -
"The National Trust does not permit photography or filming at its properties for commercial use or for reproduction in any form. Images taken at NT properties may not be submitted to photo libraries, agencies or on-line providers or provided directly to image buyers. Requests for access for commercial photography or filming should be directed to the Broadcast Media Liaison Officer (020 7799 4547) in the first instance..

The National Trust welcomes outdoor photography for private and personal use and research at many of its properties. We regret that photography, either with camera or mobile phone camera, is not permitted indoors. Special arrangements for photography can be made for amateur photographers and for research purposes by contacting the property concerned in writing. If access is allowed, you will need to sign a contract which confirms that images are for personal use only."

The highlighting of the words or for reproduction in any form, being my addition, in order to focus attention on that part of the statement.

Comments I've found which directly refer to the trusts clause, are unanimous in their belief that an amateur, uploading a photo to a website (with no intent of sale or profit making), would fall foul of the clause, and that this would encompass the photographing of anything and everything, whether it be the actual landscape itself, or of a single flower, if such photo's could be proved to have been taken on the trusts land.

This is indeed an abysmal state of affairs. The trust manages a significant amount of land in areas of outstanding natural beauty, including several hundred miles of coastline.

The fact that the furore has been growing for several weeks, and the trust have not issued a definitive statement to confirm/counter the beliefs, is, quite frankly, appalling. The whole of the trust's senior management, officers, and legal consultants, should be thoroughly ashamed of themselves.

The trust is supposed to be looking after these areas for the benefit of the nation - people like you and me - and not behaving like some sort of iron fisted dictatorship.

Regards
Mike.

[eeyore]

Originally Posted by Lancashire Lad

Comments I've found which directly refer to the trusts clause, are unanimous in their belief that an amateur, uploading a photo to a website (with no intent of sale or profit making), would fall foul of the clause, and that this would encompass the photographing of anything and everything, whether it be the actual landscape itself, or of a single flower, if such photo's could be proved to have been taken on the trusts land.

.

the thing that in my view makes this all a storm in a tea cup though is that although the clause does possibly encompass the situation you outline , until or unless the trust actually prosecutes someone for transgressing the bylaw in this way this is all theoretical.

the clause slightly afterwards "The National Trust welcomes outdoor photography for private and personal use and research at many of its properties. We regret that photography, either with camera or mobile phone camera, is not permitted indoors. Special arrangements for photography can be made for amateur photographers and for research purposes by contacting the property concerned in writing. If access is allowed, you will need to sign a contract which confirms that images are for personal use only." makes it fairly obvious that they are not aiming at amateur photographers at all but trying to curtail the sale of images of their property by pros and semi pros , which seems to me to be eminently reasonable.

it could also be argued as a defence that putting an image on a non comercial webpage with no intent to sell it could be counted as personal use and thus allowed by the byelaw anyway.

[Lancashire Lad]

Originally Posted by eeyore

...the thing that in my view makes this all a storm in a tea cup though is that although the clause does possibly encompass the situation you outline , until or unless the trust actually prosecutes someone for transgressing the bylaw in this way this is all theoretical....

I accept what you are saying, but until such time, the uncertainty remains. And being uncertain whether they might be on the wrong end of that first prosecution could be a not insignificant consideration in the minds of anyone thinking of visiting & photographing trust property. (and I mean the great outdoors by this).

Great numbers of people are talking of cancelling subscriptions, refusing to visit trust properties etc. etc.

Surely, it must be in the trust's interest to clarify the situation without further delay, and end all the bad public relations, speculation, and conjecture.

Regards
Mike.

[pressld2]

But what about people who are trying to sell their images? Me for a start! I'm not a professional photographer and I'm not making a mint out of it - sold three photos is two years for a net profit of £112 - but that's not the point. By what right do they tell me that I can't offer for sale photographs of landscapes that I own every bit as much as they do?

I can understand that some of the items inside the properties may be susceptible to damage from flashguns and that photographers using tripods could cause an obstruction or be an accident hazard. I can also understand that there are security considerations - some of that stuff is pretty valuable. But outside? Landscapes? Flora and fauna? They've stepped way over the line here in my opinion.

If I want to take a photo of the White Cliffs of Dover, I will.

If I want to offer it for sale, through a photo agency or directly, I will.

If I'm lucky enough to find a buyer to sell it to, I will.

If the NT don't like it I'll happily see them in court. All it needs is one test case and their entire house of cards will collapse.

Dave P.

[acherontia]

Reading through Mike's (Lancashire Lad's) post it certainly does seem a sad state of affairs.
As he mentioned earlier - it is a TRUST held on behalf of the British people and subsidised in the main by the very same.
If I rented a field from someone i would hope to be able to photograph the flowers or wild life in it. The TRUST exists on behalf of the people who very often want to take photographs when they have paid , either on the day or by subscription, for that priviledge. I could undertand that indoor flash photography may damage priceless heirlooms but Hey! What harm is taking an image of a wild flower or a landscape going to do?

It does stink somewhat - doesn't it and I would tend to agree with Dave P as regards throwing down the gauntlet.
They're not doing themselves any favours are they?

Acherontia

[Keith Talbot]

Originally Posted by pressld2

If I want to take a photo of the White Cliffs of Dover, I will.

If I want to offer it for sale, through a photo agency or directly, I will.

If I'm lucky enough to find a buyer to sell it to, I will.

If the NT don't like it I'll happily see them in court. All it needs is one test case and their entire house of cards will collapse.

Dave P.

Go Dave!!

we're all here if you need a character witness

[wildlifesnapper]

Originally Posted by acherontia

I would tend to agree with Dave P as regards throwing down the gauntlet.
They're not doing themselves any favours are they?

Acherontia

Apparently the gauntlet has already been thrown by one agency that , unlike Alamy, did not buckle under the bully boy tactics of the Nazi Trust ( as they have been nick-named ) and told them they will not remove any images and if they want to take them to court - go ahead.
The big problem is if they do take someone to court and lose then they will lose all controll on any images - a HUGE risk !

By the way , do you know that you can go onto NT property and paint a landscape and then sell that for profit. Discrimination against photographers has been mentioned in some forums.

neil

[kiltoncomp]

Having just received the latest issue of the National trust magazine, I see that they hold digital photography workshops at many of their properties, also photo competitions etc

It made me wonder if the all photos taken on these courses also become the property of the NT?
After having to pay £65.00 for the course to then be told that the photos also belong to the NT might not go down to well to say the least,

[acherontia]

Originally Posted by wildlifesnapper

By the way , do you know that you can go onto NT property and paint a landscape and then sell that for profit. Discrimination against photographers has been mentioned in some forums.

neil

Even more unbelievable! Photography can be art too - but available to those who can't put paint on paper - like me. It does seem a bit discriminatory, or even snobbish. I wonder what would happen if Mr A took a photo to do a painting to sell for profit?

Good to hear that someone has challenged the nazi trust (I like it!) Bet Alamy has quite a few on there anyways - caterpillars and such don't have 'I belong to the NT' hung round them in big letters.

It made me wonder if the all photos taken on these courses also become the property of the NT?
After having to pay £65.00 for the course to then be told that the photos also belong to the NT might not go down to well to say the least.

They probably frisk them for hidden memory cards before they leave!
Seriously - what are they playing at? And more interestingly do they have some kind of hidden agenda? It just doesn't make sense to hit the people they hold the property in trust for over the head with big sticks! It's extremely alienating and the more is heard of it the more likely their revenue may dwindle.
I'm glad I'm not a member - haven't been since the kids were small and definately won't be now.

Acherontia