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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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!
Yes, I noticed that s.37 of the 1907 NT Act earlier this week and discussed it with EPUK moderators. I agree, it looks even less likely NT has the powers it claims, especially on open land with evidence of historic use. As you said, NT appears to have a bad dose of the ultra vires.
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I've had a dig through the legislation and would bring your attention to Section 37 of the National Trust act 1907
"All rights of common commonable or other like rights or rights of way in over or affecting the Trust property shall remain and be unaffected by the provisions of this Act and save as in this Act expressly provided nothing contained in or done under or in pursuance of this Act shall take away abridge or prejudicially affect any estate vested in or any right belonging to and previously to the passing of this Act exerciseable by any person. "
Thus one could presumably argue that if the right existed prior to the formation of the NT to take photos (and sell them presumably) one could surely argue that the NT is expressly forbidden to do anything to affect that right. Commercial photographs (postcards etc) taken prior to 1907 must exist in respect of many NT buildings; proving that the right existed before the NT came into being. Just a thought!
Have you ever dealt with the NT before?
they are a law unto themselves and treat their visitors with contempt.
Good luck on getting anything other than a pithy answer from them that explains nothing.
Self-regulation appears somewhat discredited lately! However it's certainly worth individual photographers with specific personal complaints taking that route.
EPUK will continue to press NT to show a legal basis for their claims to restrict the business of our members, or withdraw the claims. We aren't giving up because they dislike the question or can't be bothered.
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Can I suggest that it might be worth making a formal compplaint using the NT's complaint procedure?
http://www.nationaltrust.org.uk/main/w-global/w-contact_us/w-complaints_...
which has laid down timescales and an external adjudicator?
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