Property Releases
August 19th, 2010
by Gwyn Headley
Managing Director
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.
I read a report recently, in Amateur Photographer, if my memory serves me well, that ran along the lines that the NT was removing restrictions on external photos on their property and having another look at policies for photos of interiors, the word, Draconian, was bandied about.
One of the things that concerns me about the NATIONAL Trust, is, it is our property anyway, I believe; is it a private company or is in Government and donation funded.
The National Trust is an independent charity incorporated by Act of Parliament; like the BBC it is not owned by the government or citizens of the UK, or beholden to them in any way.
[…] law as to why this usage was a breach of his rights, and all were thrown out. A comment on the fotoLibra blog, comes down against the decision, on the grounds that it was “discourteous in the extreme not […]
my bread and butter comes from photographing properties for estate agents usually with a telescopic mast (the phrase to use here is “elevated photography”). I then use those images for the promotion of my company and services (and I always ask the vendors if I can use them). Once the house has been sold, does this mean that I have to stop showing that house because I dont have the current owners permission? or do I have to revisit each house and ask permission again?
I recently photographed a medieval castle (one of only two in Derbyshire) with my mast, owned by UK Coal, they had no problems with me using the images to promote my company. these shots are listed on fotoLIBRA and believe me if anyone wants to buy one I say let ’em buy it 🙂
The National Trust in many respects is a charity and needs to make money to keep these marvellous buildings going. They run a business like picture library where all the images of “their properties” are marketed. surely any promotion of these properties by third parties is a good idea – but not to them, they want the sole rights to market (and make more money from) images of their “stock”. If you want to use images commercially, you have to approach them and pay a fee for the privilidge. And as for English Heritage, well thats another kettle of fish entirely.
The Trust has relaxed its restrictions on the taking of photographs inside properties but the local property manager still has the last word. I was recently allowed to shoot in one property but not in another.
However, being allowed to take shots does not carry with it the Trust’s consent to publication, and I suspect that will continue to be an issue.
Re: the National trust; the simple way to avoid problems with them is to only put up for sale photographs taken of NT properties from public land. They can only restrict usage on photographs taken whilst the photographer is on their property, and there is even questions as to whether they can enforce that on property where there is free public access.
I must agree with the blog’s assertion that the NT’s position is looking very fragile indeed.
I was interested to read the note in the recent Newsletter about the National Trust.
Much as I support their aims and achievements, I think in recent years their attitude has become overbearing and rather arrogant. Those familiar with the Glencoe debacle a few years ago will agree with me but that’s outside the present context.
I wonder whether “copyrighting ” their properties would stand up in court. Obviously one can’t copyright a landscape or a view or a vista – such restrictions can only be embraced in a contract implied by the purchase of a ticket. Are the details and conditions of entry properly and prominently bought to the notice of the public in every case ? I wonder…
Anyway, who is to police the use of a casual snap, shot with no commercial intent at the time, which is then sold perhaps several years later – possibly even by the inheritors of the now deceased photographer’s estate ?
I’ve certainly sold and will continue to sell pictures of NT properties. Of course much of their land is free access so there can be no threat there – and much else that is not free access is crossed by Rights of Way.
Some may recall the case some years ago when Fay Godwin, no less, was “apprehended” by officious NT operatives ( likely to have been unpaid volunteer officials, I would imagine ) shooting from a tripod on such a public Right of Way. I understand that she was “arrested” and the police were called and there was a very unpleasant altercation. Naturally she threw the book at them, it was all hushed up but she received useful damages. Or so I understand. Doubtless Sal Shuel will know all the details.
There is a legal precedent covering ‘artists’ working on Rights of Way. The bare bones are illustrated by Hickman v Maisey (1900 ) 1 QB 752.
Hickman let his land to a trainer of racehorses. Maisey, a journalist, walked backwards and forwards over some 15 yards of a right of way across the land in question for an hour and a half taking notes of the horses’ performance. The Court of Appeal held that Maisey had exceeded his right and was a trespasser. Lord Justice Smith pronounced ” If a man, while using a highway for passage, sat down for a time to rest himself, to call that a trespass would be unreasonable. Similarly if a man took a sketch from a highway, I should say that no reasonable person would treat that as an act of trespass ” The motive for a person’s journey is irrelevant provided that his use of the path is for passage.
from RIGHTS OF WAY – A Guide to Law and Practice / Open Spaces Soc. + Ramblers Association 1983 / Item 2.2/1
I enjoyed many commissions to photograph NT properties in the sixties and seventies. Always I wrote to each administrator beforehand, enclosing a copy of a “To whom it may concern” note from my publisher, and always I was given every facility and any assistance I needed. Visits were always arranged for the best days or times when the public wouldn’t be getting in the way and often I was invited in for coffee or even lunch. I scratched their back and they scratched mine. And the copyright of course remained mine.
Then – comparatively recently – they started their own picture library, the administration changed and they became all uptight, commercial and arrogant – and zap. National Trust Press Cards were no longer issued. All too frequently they now seem now to operate for their own edification rather than in the interests of the wider public. Now one CAN get permission to shoot but they demand the copyright afterwards. There are ways round that, of course.
An interesting situation arose in the US in the ‘90s when a photographer was sued by the Rock & Roll Hall of Fame in Buffalo for publishing a photograph of their new building which he had shot from a public place. It was thrown out by the US Supreme Court but it was frightening that it had reached that far.
It’s as bad as ‘elf & safety trying to insist that all rock climbers must have a rope above them. We soon put paid to that one.
The times in which we live !
[…] 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. […]