The National Trust is, at least in part, relying on byelaws for authority to regulate photography on its property. As the private landowner it can impose whatever terms it likes, but does not want to appear arbitrary. It warns that breaking any of its byelaws is a criminal, not civil offence.
Successive National Trust Acts have enabled the NT to make up its own byelaws, in the same way that local authorities do. NT byelaws are framed to regulate nuisance to visitors and damage to NT properties, and safeguard its aims. They deal with misbehaviour like littering, lighting fires, swearing, stealing plants or grazing animals. They do not create a commercial monopoly in photography as a defence against 'exploitation' nor allow it to control its image, despite NT claims to the contrary.
In the 1965 byelaws is this restriction on photography:
"17 'No unauthorised person shall on Trust Property sell or offer or expose for sale any commodity or article or for the purpose of trade or reward take any photograph'
It is this byelaw that the NT insists gives them the legal right and duty to limit photography to amateur, personal use. And further to prohibit sale to buyers and submission to libraries, as criminal offences. It seems clear cut.
But what the NT does not mention is that the section in which 17. appears is headed 'Hawking'. Hawking is the practice of opportunist street selling, involving 'swooping' on prospects. The intention of the Byelaw when created was to prevent, for example, photographers with monkeys haranguing NT visitors for trade.
In other words, this byelaw has nothing to say about commercial photography in the context of editorial or stock purposes because they are in no sense 'Hawking'. The NT appears to be twisting its own laws for the purpose of commercial advantage.
Interestingly, the penalties are anyway substantially less than NT charges for permits.
Penalties for Infringement of Byelaws 26. Every person who shall offend against any, of the foregoing Byelaws shall be liable on summary conviction to a fine not exceeding £20 and in the case of a continuing offence to a further fine not exceeding £2 for each day during which the offence continues, or such other maximum as may be specified from time to time by any Act of Parliament enacted after the date hereof.
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If a artist vists a NT site and then goes home and does a painting of it from memory, could NT stop him from selling it? As a photographer is an artist and any picture he takes belongs to him as copyright owner then, I can't see how they can restrict its sale. If this was the case then, as all land is owned by someone, they could all stop you from taking photos anywhere and everywhere. This would be a silly situation and I can't see a court accepting this.
It is also interesting to note that as a stock library they are a bunch of cowboys. Just noticed this on the NTPL website. Given everyone else in commercial libraries have to go to the trouble (and cost) of obtaining releases, and have the problems associated with the trust moneygrabbing when you are trying to make a living, I find the terms below fairly exceptional and disgusting:
"NTPL gives no representations or warranties whatsoever as to the existence of any Release associated with the image
ii. NTPL gives no representations or warranties whatsoever with respect to the use of names, trademarks, logos, uniforms, registered or copyrighted designs or works of art depicted in the Image
iii. You must satisfy yourself that all necessary rights, consents or permissions as may be required for Reproduction of the Image have been secured"
http://www.ntpl.org.uk/index2.pgi
I'd be curious to know has this ever been raised in court. Surely the best way to deal with this problem would be to launch a test case. Deliberately put an NT picture for sale for commercial purposes and then wait for them to challenge it and then take the matter to court. Off the top of my head the issues raised would be:
"ultra vires"
the NT is not allowed to act commercially.
the powers that the NT is claiming to use, do not in fact give them the right to behave in this way, as they were intended for a different purpose.
unjust enrichment.
Negligent, in that others have already suffered loss as a result of their illegal activities (both in terms of fines and lost revenue).
Libelous/slander in that those being attacked by the NT are being branded "criminal" when their is no justification for this.
The most effective way to test this would be for it to end up in court, since the end decision would end up in the media and would pretty much put paid to the NT behind the scenes "bully" tactics that they seem intent on using.
A good bit of "public bad press" would do them no harm at all, especially if a comparison of the earnings of the average photographer was compared to them and their execuitives in the process.
Interesting. This page is the no 1 rank in a Google search for criminal byelaws.
Looking at the other hits you get a clear picture of National Trust's delusions of grandeur.
Elsewhere in the top 10 hits; Transport for London has byelaws that create criminal offences but it is very clear the reasoning is that severe injury (or even death) could arise from breach of them.
The MOD also comes up (obviously there are safety issues there as well as matters of national security).
Also Scottish Water (again a potential life or death issue if public water supply is being interfered with)
The rest are all various local authorities and government departments.
Oh dear I wonder if National Trust are themselves breaking the law by implying they have the authority to arbitrarily define certain action as crimes. Someone should really take them to task over this!
I know I'm dredging this up after quite a few months and I'm not sure what the score is now but there is one thing I'd like to raise.
Has anyone considered that National Trust byelaws are only applicable and enforecable on National Trust property and are irrelevant elsewhere. They're not enforceable on a Photograph Agency based in Camden or a photographer in Brick Lane any more so than are City of Westminster byelaws.
Legally I don't see what they can do if you sold a picture of one of their buildings other than refuse to let you in again. If there's a property release issue vis a vis perceived product endorsement that's a separate issue entirely and the responsibility of the editor who publishes it.
Franky I think the NT's position is about as legally relevant as Cineworld not allowing you in the cinema with food and drink bought off the premises. If they review their CCTV and see you eating a Big Mac in the cinema a week earlier they have every right to bar you. Even if they can manage to trace you, I don't see any court of law upholding their complaint that you breached their policy and awarding damages even though by entering their property you implied agreement to abide by it.
Thanks for the reply David.
Basically I agree with your position and find having to deal and compromise in this way galling. However, after talking to a photo library manager and others in publishing it seems that NT have been fairly aggressive in this area, not just with Alamy. And so, without some kind of agreement from NT, I simply would be unlikely to get these images published anyway as distributors/publishers shy away from confrontation with the NT.
I occasionally provide images (with restricted licence) to organisations in return for special access or other support so I (perhaps naively)suggested a similar arrangement with the LOCAL NT office, who have been reasonable and helpful throughout. The PROW was a last defence should other approaches fail. As it happens, I have been informed that editorial use of images taken on free access land owned by NT is not an issue (and can be sold/distributed in the normal way) and they are only concerned about commercial/advertising use where NT may become associated with a company or product. For me, in this case, this is an OK result and negates the (possible future) argument as to whether any particular image could have been taken from a PROW. I am quite aware that I find myself negotiating for rights that are, or should be, mine in the first place.
I guess we will now have to see how this works out in practice.
Thanks
Hi
Does anyone have the latest info regarding images taken on National Trust land but from a public right of way? Like many I had a series of wildlife pics from one NT location removed from Alamy but not from another NT location. The difference between them being the first location has only footpaths with permitted access, whereas the second has PROW. I recently contacted NT (local site) about some new wildlife images I took on their land but from a PROW (or near enough to it - its not clearly defined) and I am being told I cannot distribute the pics for any commercial gain, but I can send them to a specific mag as long a) I'm not paid, and b) NT get a credit. I contacted them as it is a high profile site and quite high profile species and I wouldn't want to cause any embarrassment to a publisher should the images be used and NT then complain. The images were taken opportunistically over a couple of days after a chance encounter and I would not have had time to gain permission in advance, nor would I have wished to pay a hefty location fee.
I really want to come to some amicable arrangement with the NT and I am quite willing to provide them with images for THEIR NON-COMMERCIAL use in return for being able to distribute the pics in the usual way. I would however like to know just how strong my bargaining position is. I know the entire issue is of doubtful legality anyway but I am rather hoping the PROW aspect is the ace up my sleeve. Anyone know for sure? Many thanks.
Just to note that s. 40, Criminal Justice Act 1982, as amended, increased the fine from £20 to £200. The £2 per day bit was not changed.
Just to update people. I've been following the NT's formal complaints procedure and having exhausted the first stage which was pretty much a 'brush off' I've now received a letter in response to the second stage of the procedure fro Sue Wilkinson, marketing and supporter Development Director saying that she 'is most concerned to read my comments and will be investigating the matter further'.
Knowing the NT don't hold your breath! However when I get a spare bit of time I might start putting my letters and their responses online so that they can be followed in detail!
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