Posts Tagged ‘property releases’

Opening Up Stonehenge

October 25th, 2010

The public reaction to my previous blog posting Stonewalling Stonehenge has been remarkable, and understandably the majority of comments have been in favour of the rights of photographers.

I wanted to address each individual comment in turn, but there were simply too many for me to cope with and keep fotoLibra ticking over at the same time. So firstly I want to thank everyone who took the trouble to make their points. Over 10,000 people, among them BBC Radio 4’s PM programme, read the comments, and PM invited me on air to discuss the subject. Eddie Mair gave us four and a half minutes (the piece is about 40 minutes into the broadcast). The story was picked up and repeated (with varying degrees of accuracy) in blogs around the world.

By the way, I know some of you think Jacqui Norman wrote this, but in fact the writer is Gwyn Headley, the founder of fotoLibra. Jacqui writes the fotoLibra Newsletters and the Picture Calls. Rather than adding to the comments on the original blog, I decided to lay out my subsequent thoughts in this second posting.

In this economic climate I do feel it is ambitious of property owners to ask for a commercial photography fee from photographers upfront, unless exceptional access conditions are granted in return.
But the strength of feeling against English Heritage surprises me. I almost find myself in the invidious position of having to defend them.

First of all, English Heritage is a wonderful institution doing an amazing job with diminishing resources in the face of hostility from both the public and the Treasury. One small thing that would make a big difference to their ability to cope would be the removal of VAT on building repair and conservation work. But our politicians and tax officials are too craven, indifferent or greedy to allow that minor concession.

Like all organisations, English Heritage will have its fair share of zealots, jobsworths, and staff who are plain barking mad. They can be rigid, bureaucratic and inflexible. They will retreat behind barriers of obfuscation and legality. But behind it all their purpose is simple: to do their best to preserve the threatened, imperilled heritage of England. In Wales, we have Cadw, banished by the Welsh Assembly Government to a prefab on an industrial estate on the outskirts of Cardiff, so highly do Welsh politicians regard our heritage. Scotland has Historic Scotland, about which I know less. They all suffer the same slings and arrows.

My parents, living in a Grade I listed house, were not allowed to change their bedroom wallpaper. It was a Chinese print dating from the eighteenth century, and it needed to be preserved. We had no problems with that.

There is always the danger of the Taste Police stepping in and obstructing development, but when there is pragmatism and understanding on both sides a mutually agreeable solution can usually be thrashed out.

I remember with sadness the wonderful Art Deco Firestone Building on the Great West Road in London. It was listed by English Heritage, but being office workers they tend to go home at 6 o’clock. At 6:05 on a Friday evening, the bulldozers went in and by the time English Heritage officials were back at their desks on Monday morning the fabulous, unique Firestone Building was a pile of rubble. The slimeball developer was fined the maximum — £5,000.

But let’s get back to photography and the rights of photographers — specifically fotoLibra members — to photograph what they like. In a free country (and I don’t believe there is any such place, on this planet at least) people should be allowed to photograph what they can see. How you subsequently use that image is up for discussion.

It would be unwise, unjust and unfair to use a photograph of an innocent stranger to promote a commercial product, or to illustrate an editorial piece on the perils of drug abuse, sexual perversion, or any other rabble-rousing indiscretion. The person concerned could sue and would quite possibly — or would certainly deserve to — win.

I might think it tasteless to commandeer Stonehenge to promote some commercial service or artifact, but we’ve been worrying this bone for six days now and there doesn’t seem to be a thing anyone could actually do about it in law.

So instead of issuing poorly worded and hastily thought out decrees which have the unfortunate effect of getting up everybody’s nose and giving bureaucracy a bad name, why don’t organisations like English Heritage open a dialogue with organisations like fotoLibra and see if we can work together towards a common goal?

They want to preserve our heritage (and so do I) and we want to sell more images. I’m sure we can do a deal.

I’m picking up the phone right now.

We recently received the following email from English Heritage:

We are sending you an email regarding images of Stonehenge in your fotoLibra website. Please be aware that any images of Stonehenge can not be used for any commercial interest, all commercial interest to sell images must be directed to English Heritage.

It’s kind of them to think of us, but this raises a number of questions.

Firstly, what legitimacy do they have for this claim? Is there any law that states that it is illegal to use images of Stonehenge for any commercial interest? Can someone direct me to it?

Secondly, if an image of Stonehenge is so used, how could they possibly police the usage? A quick browse through a number of rights-managed and royalty-free online picture libraries produced the following:

iStockPhoto (a US owned company) has 513 images of Stonehenge
Fotolia (US) has 648 images of Stonehenge
Dreamstime (US) has 670 images of Stonehenge
Shutterstock (US) has 737 images of Stonehenge

All the above sites sell images on a royalty free, unrestricted usage basis. If anyone buys a royalty free image from one of these suppliers then he’ll be using it as, where and when he likes, without asking English Heritage’s permission. How will they stop that?

Alamy (UK) has 1130 images of Stonehenge
GettyImages (US) has 860 images of Stonehenge
Corbis (US) has 426 images of Stonehenge
fotoLibra (UK) has 223 images of Stonehenge
Photo 12 (FR) has 114 images of Stonehenge

These are mainly rights managed. Rights managed images are essentially designed for a specific and time limited usage, and they’re more controlled and controllable than RF images.

Has every picture library with images of Stonehenge received this email? If we really are breaking the law by selling images of Stonehenge to be used for any commercial interest, then of course we will cease and desist immediately. However nothing in the National Heritage Acts (1983, 2002) which brought English Heritage into existence refers to their right to prevent the sale of images of any of their properties. In any case it must be legal to display them for sale if we intend to sell them for non-commercial (i.e. editorial) rights-managed usage.

If English Heritage wants to stamp out the unlicensed, unregulated, unlimited usage of RF images of Stonehenge they will have to talk to the people who hold those sorts of images for sale. In a large number of cases they will find that the picture libraries or stock agencies who hold these images are owned by foreign nationals who are not subject to British jurisdiction, who are based overseas, who have no connection, emotional attachment or even necessarily fondness for the United Kingdom.

Why the hell should they listen to a powerless quango which wants a slice of their profits? English Heritage is the current custodian of Stonehenge. It has been their responsibility for 27 of the monument’s 4,500 year old history. And they want to own the image rights to the site. (BTW It’s well known in the Headley family that our great x 170 – grandfather Elfis carved the stones for Stonehenge out of the Presley mountains in Wales, so our claim to the site is far longer than English Heritage’s nano-ownership (o.oo6% of the lifetime of the henge)).

In a recent blog post I noted the plight of a property owner in San Francisco who took the HSBC Bank to court for using a photograph of his house in a promotional leaflet without his permission. He lost, seven times over. That doesn’t set a strong precedent for EH or the National Trust or indeed any owner whose property can be seen from public land. Google Earth and Google Maps have pretty clear images of the place, as well.

OK, English Heritage’s email did not ask us to remove the images of Stonehenge from fotoLibra. But they did use imperative, urgent words like ‘can not’ and ‘must be’. I am ready to be proved wrong, but I don’t believe there is any legal substance behind the request. How can there be? Look at this:

Photo © Clive Morgan / fotoLibra

What if we photograph the place from the air? What law can we possibly be breaking here?

While we’re looking at Clive‘s photograph, who built that ugly tarmac footpath cutting through the sacred ring?

Quis custodiet ipsos custodes?

Property Releases

August 19th, 2010

We recently posted a blog about Model Releases.

Reading Jacqui Norman’s August Newsletter to fotoLibra members this afternoon I noticed she repeated her advice not to photograph National Trust properties as they wanted to reserve the rights to themselves.

As far as I know, this “right” hasn’t been tested in law. I’m a staunch supporter of the National Trust, but their unilateral ban on photography of our national heritage does get up my nose.

I’m also a supporter of personal privacy. Not so long ago someone complained because a photograph of his unusual (and ugly) car had been posted on fotoLibra. With the agreement of the photographer, we removed it, simply because it wasn’t worth fussing about. The complainant had absolutely no right to prevent its use, but as he asked nicely enough and we saw no early prospect of a sale we took it down.

The National Trust and other owners of heritage and interesting buildings deserve protection from exploitation. Images of their properties should not be used for promotional purposes without their consent. They shouldn’t be used to endorse commercial products without some sort of fee being paid.

But I absolutely defend the right of people to photograph what they will, and sell those photographs if they can, if they are to be used in an educational, illustrative, informative or editorial function. If you’re publishing a book on Castles, you’ll be including a number of National Trust properties. The book will be about those properties. There is no way anyone should only be allowed to use pre-approved images of these buildings.

It’s down to power and control. Celebs in the pupal stage will do anything to court publicity. Once they achieve imago they need to control publicity: vetting photographs, checking journalists’ credentials, only being photographed from one side.

The National Trust’s position is looking increasingly fragile. It only needs someone with a little spare time and a little spare money to challenge their stand, and I suspect the edifice will go the way of the walls of Jericho.

A recent case in America will illustrate the point. I may say that in this instance I am firmly on the side of the property owner.

Douglass Robinson lives in a startling yellow house of the Painted Lady style in San Francisco’s Haight-Ashbury district, fondly remembered by all old ’60s potheads. He’s accustomed to having the house photographed, and he normally puts up with it.

But he finally drew the line when his venerable old pad featured as the solus lead on a leaflet advertising mortgages for an international bank. Sympathetic neighbors asked if he was going to sell, or if he was running into financial difficulties?

So he did what every red-blooded American does in times of crisis: he sued. On seven counts.

And the HSBC Bank (for it was they) won every one of them.

You can read the whole sorry saga here. The blog is headlined “A House’s Right To Publicity”, but surely it should have been “A House’s Right To Privacy.”

HSBC should not have gotten away with it. Apart from anything else, it was discourteous in the extreme not to request permission of the owner. (I can hear the lawyers whispering in the back of my head: “such permission not to be unreasonably withheld”).

American law is based on precedent. This judgement is going to make it harder for property owners to claim visual rights over their buildings.

Unlesse the owners are large American corporations, of course.

Here’s an index to the fotoLibra Pro Blog for the whole of 2009.

As I complained 6 months ago, it takes a surprising amount of time to compile, so if there are any WordPress experts out there who know how to automate this process, we’d love to hear from you.

If you’re new to fotoLibra, welcome, and may we suggest you read through the HINTS & TIPS section, and if nothing else read Great Expectations. If you enjoy a bit of controversy, read BAPLA Shock Horror.

Comments are welcome, even on old posts, and will be read and often responded to.

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Releases

December 4th, 2008
Gwyn Headley

by Gwyn Headley

Managing Director

Now there’s less money around, the nastier type of person is going to start scrabbling about for some of yours. We’re OK because we haven’t got any.

Seriously, if we don’t have cleared rights for an image, we’re not going to be able to make a Commercial Sale — which, in picture library terms, means a sale to an advertising agency or somewhere where the image could be assumed to endorse a product.

So that’s all the Royalty Free images gone, for a start. Never mark a picture as Royalty Free unless you’ve definitely got the Model Release, and best get the Property Release as well, unless you were standing on public ground.

The great majority of the sales we make are Editorial Sales, mainly to book publishers, so there’s less of a worry. But we’ve noticed recently that increasing numbers of publishers are demanding model and property releases when they buy images. And an image which comes with full authenticity and proper releases will be more valuable.

Our downloadable Model Release and Property Release are laughably simple, and would doubtless be shredded by any Noo Yoik attorney needing to feed his Coke (acola) habit. Here’s an extract from a US model release:

For good and valuable consideration of ____________________________, herein acknowledged as received, and by signing this release I hereby give the Artist and Assigns my permission to license the Images and to use the Images in any Media for any purpose (except pornographic or defamatory) which may include, among others, advertising, promotion, marketing and packaging for any product or service. I agree that the Images may be combined with other images, text and graphics, and cropped, altered or modified. I acknowledge and agree that I have consented to publication of my ethnicity(ies) as indicated below, but understand that other ethnicities may be associated with Images of me by the Artist and/or Assigns for descriptive purposes.
I agree that I have no rights to the Images, and all rights to the Images belong to the Artist and Assigns. I acknowledge and agree that I have no further right to additional Consideration or accounting, and that I will make no further claim for any reason to Artist and/or Assigns. I acknowledge and agree that this release is binding upon my heirs and assigns. I agree that this release is irrevocable, worldwide and perpetual, and will be governed by the laws of the state of California excluding the law of conflicts. I represent and warrant that I am at least 18 years of age and have the full legal capacity to execute this release.

And here’s ours:

I hereby assign full copyright of the photograph(s) taken of me by the above-mentioned photographer to that photographer together with the right of reproduction either wholly or in part.
I agree that the Photographer or licensees or assignees can use the above-mentioned photograph(s) either separately or together, either wholly or in part, in any way and in any medium.
The Photographer and licensees or assignees may have unrestricted use of these for whatever purpose, including advertising, with any reasonable retouching or alteration.
I agree that the above mentioned photographs and any reproductions shall be deemed to represent an imaginary person, and further agree that the Photographer or any person authorised by or acting on his or her behalf may use the above mentioned photographs or any reproductions of them for any advertising purposes or for the purpose of illustrating any wording, and agree that no such wording shall be considered to be attributed to me personally unless my name is used.
Provided my name is not mentioned in connection with any other statement or wording which may be attributed to me personally, I undertake not to prosecute or to institute proceedings, claims or demands against either the Photographer or his or her agents in respect of any usage of the above mentioned photographs.

We don’t seem to be so concerned about the model’s ethnicity. Should we be? And the American release assumes payment of the model(s) in some form, difficult when you’re faced with a rioting mob. But then getting any rioting mob to stop and sign model releases has always posed a problem.

Let’s face it, this is the boring side of photography. But people who have a high boredom threshold have the capacity to succeed in politics and to make money.

So sorry, but it has to be done.