Post by Snappersforum on Dec 22, 2013 16:01:15 GMT
www.photographers-resource.co.uk/photography/Legal/Access_Rights.htm
Access Rights and Photographic Limitations
The topic of what you can and cannot photograph, where you need permission and what use you can make of photographs is like anything that touches legal topics difficult and often irrational. Our objective here is to throw some light on this and to provide you with a general guide that will be of help without creating a large book in the process.
We are looking completely at England Scotland and Wales, different rules and conditions will exist elsewhere.
There are several areas to consider:
Some general pointers and comments Areas and items that we cannot photograph.Restrictions that apply to tourists, amateur and enthusiast photography, not intended for commercial use. Taking photographs that you intend to use in some commercial sense Being engaged in commercial photography
Land access
General areas and pointers
With few exceptions that we are covering below under areas that you cannot photograph, you are unlikely to encounter any major problems anywhere in the UK. The worst that will normally happen is that you will be asked to leave the premises or to stop taking photographs.
Generally you have the right to photograph anywhere that is public property, including public roads, footpaths, rights of way and between high and low tide at least if not the entire beach areas throughout the UK. Generally no person has the right of privacy of themselves or their property photographed from such a place.
On private property, that you have been granted access to, you can take photographs unless you are asked not to, or where in being granted access its not a contractual term that you do not take photographs, usually this is not a blanket restriction more of a commercial restriction on the use of the photographs.
You can be asked not to photograph on private property, or it can be made a condition of entry that you do not, however usually restrictions are not applied so widely but such items as commercial photography tends to be covered, so its not that they want to stop you taking photographs as much as seeing the potential to get cash out of those who they think will pay up. In many cases where photographers using better cameras get challenged, where others using point and shoot cameras, phones etc do not, its just that you look as if you might be doing something to make a pound or two, and lets face it the average security guard isn’t likely to know the difference between one photographer and another.
As a general guide if someone objects to what you are photographing, the best advice is to move on to another topic, after all there is no shortage of topics. A police officer who asks you to move on, is a risk to you if you don’t do it, as you could find yourself in trouble for causing an obstruction. People using tripods often get problems partly because they are in one place longer and therefore there is more chance when seen on a security camera for people to get to you, but also some are concerned about the risks of someone tripping over the tripod legs.
No one, other than a police officer who takes it for evidence, can take your camera away, and they are supposed to just take the card rather than the camera if you have taken it out of the camera , and no one can insist you delete photographs taken, but it’s a good idea to know how to hide images, see article on this, as this satisfies most, and defuses situations.
You have to consider how you use photographs and by doing so you don’t give anyone grounds to say that you defamed their character, so for example if you took a photo of a lady walking down a street and used it to illustrate a picturesque place to visit you could expect little problem but the same photo used to illuminate the problem of prostitution in some streets you can see could lead people to jump to conclusions about your subject.
Generally incidental items are not a problem, for example posters and photographs in the background, street scenes skylines, and public art like sculptures and the like. Buildings taken form the public right of way rather than private land are okay, but you do need to be aware of trademarks, although such items as a shop in a street scene would not present a problem.
The British legal system is expensive to use, so expensive and largely unpredictable that few without very large pockets would consider taking any action against you. Most corporations and individuals are unlikely to take action and many others have not to date taken action against photographers simply because they might loose and this would set a president limiting their actions in the future.
Areas and items that we cannot photograph
There are restrictions, you cannot photograph in a court or the precincts of a court, some witnesses and alleged victims in sexual cases cannot be photographed, you also cannot photograph people where a court has ruled their identity is not to be disclosed. You cannot photograph a judge in his fancy dress arriving at court. If you want to photograph anywhere near a court then you need to look at more detailed information relating to this that we cannot cover here.
You cannot, without permission, take photographs on the railways, railway stations and the like, but generally you will find that preservation railways have few restrictions anywhere the public are allowed to go, and often you can go on their lines if you buy a low cost lineside pass. Railway photographers wear an orange (not yellow) high visibility tabard or jacket, this helps the engine driver and officials to see you, and if you have one of these on you will find generally you get a lot of assistance particularly from railway enthusiasts and fellow photographers. Photographing any trains in the countryside, from field’s, roads and bridges is not going to present you with any problems. In towns and cities there is more concern about terrorism, and generally people are less friendly and suspicious.
Technically you should not photograph defence establishments but on open days, air shows and the like this is not a problem. Again if you are considered a terrorist suspect you may be challenged. In these establishments, airports, ports and the like there tends to be an occasional sudden emphasis on security before they drift back to their normal indifference.
There are also some restrictions on photographing some wildlife, particularly those species that are protected, in their natural environments in that your act of photographing might disturb them. For example some breeding birds are protected by law and you need a licence to photograph them at their nesting site, and for those where there are no restrictions take action to cause minimal disturbance to them. We will cover this in more detail in a later article.
Restrictions that apply to tourists, amateur and enthusiast photography not intended for commercial use.
Private property that you have no right to be on, is technically trespass, whatever your motive for being there. This could include a fence or wall you climbed on, but not the roadside verge outside, the ditch or fence that surrounds a property. It’s not a criminal offence to trespass in this way, but the landowner could take an action for damages if they can demonstrate they have incurred loss by your action. They could ask a court to impose a higher penalty but this would not be likely to happen unless you had repeatedly trespassed on the property when asked not to, or taken some completely unreasonable action.
Many concerts, performances and the like restrict photography, however often people do take photographs anyway. You could be asked to leave but are more likely first to be just asked not to take photographs.
Similar restrictions may apply where there are signs. But if you we charged entry and the sign was not visible before you entered it would be reasonable to expect to have your entry fee returned, if you decided to leave, as your main interest was taking photographs. If you contact many tourist sites by email they will confirm that you can take photographs, and carrying a copy of this with you would clear up the situation with any of their employees that challenged you. If they won’t allow photography then perhaps you don’t want to go.
Taking photographs that you intend to use in some commercial sense
And
Being engaged in commercial photography.
There is a difference between restrictions on commercial photography and photographs for some business or commercial use.
Commercial photography implies being involved in the activities as a commercial photographer, this is likely to involve going to a place to make a commercial or run a shoot with models, stylists, and a pre-defined client. If none of the apply you are not involved in commercial photography. Check the yellow pages or internet sites of commercial photographers, to get a better understanding of the services they provide, its basically commissioned advertising photography.
A commercial photographer does not go out and take speculative photos to potentially sell to someone, to put on picture libraries, and/or publish themselves as art or decorative products. The nearest they might get to this would be a commissioned advertising calendar. So if the restriction is no commercial photography, and you have no client and team etc. then this restriction does not apply to you.
Commercial use is more difficult to define. If you don’t think your photographs are for commercial use then restrictions do not apply.
Often other statements are used and you will need to consider their meaning, in your opinion are they trying to stop you doing something that implies a film crew, commercial shoot or the like or are they trying to just stop you selling any images taken from their property. It may be that they are concerned about insurance cover and liability to them if someone was injured, in other cases it may be that they want to share in the proceeds of your work or create a monopoly of supply of images to their own benefit. In other cases they may be just trying to limit damage that can occur with large groups of people involved in commercial operations.
You have two choices, to make up your own mind, or to ask.
Some councils also have bylaws, that appears to be about cashing in on the right to grant access to film in some areas, the Royal Parks, Trafalgar Square and Parliament Square are examples of this, its not that you cannot make a commercial with loads of people, its just they want a very large fee for granting you the right.
Some other organisations and businesses may make a reasonable charge to cover the cost of a staff member to come with you and make sure that everything is done right without putting the public or others at risk.
Land Access
Within the UK most land is owned by someone whether it be an individual or organisation, except for public highways or public rights of way, which is usually the term used for public footpaths that go across land. Determining which part of the land is the public part can be just as difficult as identifying who owns the land in the first place. With public highways when you come to footpaths or ground outside a particular building or structure for example like Trafalgar Square, where it becomes private and what is public and therefore you are allowed or not allowed to take a business/commercial photographs is just as difficult to see, there is no defined line on the ground that tells you. For the amateur photographer who is on holiday or a day visit and is taking pictures for their own private use this presents few problems. However for the photographer who wants to take pictures for 'commercial purposes', or has taken pictures in the past and now wants to sell them, then it becomes a mine field, and we wouldn't want to be standing on a mine when it goes off!
There are numerous online maps which show public rights of way and also access land as well as various websites giving out advice and help, see some of the links at the end. To find out who owns land the easiest and cheapest route is to ask somebody locally. Failing that it is possible to search the land registry for both properties with addresses and undeveloped land although there are fees, but not all properties are listed.
Private Property
Over the last few years large changes have occurred in the law in relation to the access of private land. This generally has opened up huge tracts of the countryside. Scotland has for some time had more access to some land, but in England and Wales it was the Countryside and Rights of Way Act that has opened up so much of the countryside.
There is no general restriction on taking photographs while on private property as long as the photographer has permission and owners or tenants do not normally have a right to stop someone from taking photos of their property from a public place. However the owner does have a right to impose conditions on entry, including restricting the taking of photographs. For example conditions of entry to many museums, stately homes and some concert venues do not allow photography, and if you do so then you become a trespasser and the owner can ask you to stop taking photographs and has to right to ask you to leave. If you fail to do so then they can take action for Trespass through the courts. There may also be restrictions in some attractions where you have paid an entrance fee. The effect of making the payment governs the terms and conditions under which you were allowed to enter and only if you were made aware of them. This can be done either on a notice/sign as you enter, a note on a ticket that says that entry is subject to terms and conditions etc. If you ignore the prohibition you would be in breach of contract and could be sued for damages, although there is other legislation called the unfair contract terms act that would mean if tested many of these restrictions would not apply as you had no way of knowing of their existence and did not agree to them. It is obvious that you could not write into the small print that as condition of entry you were committing to pay a weekly subscription for life, or a part of your income. It could therefore be argued that any attempt to get a part of your income relating to the sale of a photograph, was also a completely unfair expectation.
The National Trust is an example of this, they have their own commercial picture library and try to maintain a monopoly of supply of images of their properties. There have been occasions where photographers have taken images and they have been published and the National Trust has then sent them a bill for 50% of what they assume they received for the images, equivalent of their share had they sold one of the images on their library, taken by you, had you submitted it and had it accepted to be included. Many photographers will just pay this, but my understanding is that if you do not they will not test it by taking it to court as they are not convinced they would win. A lot would depend on if you were aware of restrictions and how you were told, particularly as they generally encourage people to go and photograph the outside of their properties.
Trespass is not a criminal offence, and generally you are not arrested for simple trespass, but the owner can take action through the civil courts and might be awarded damages even if none were actually done. However there are some exceptions to this including trespassing on MOD land and the railways which can get you arrested and prosecuted. There is also an issue of trespass to a person, this is where you force someone to have their photo taken or block their way to get that shot, this is considered as trespass to person. Also there is a new offence called Aggravated Trespass, which is an 'arrestable offence’ and it is committed when two or more people trespass on land with the purpose of disrupting a lawful activity’, it was brought in to prevent illegal raves, but it can be used against photographers.
Restrictions in some Public Places
Some places that we think of as being public do have photo restrictions, and there are bylaws governing the requirement of getting written permission from the relevant authority/owner and paying a hefty fee and this includes Trafalgar Square, Parliament Square and the Royal Parks. The restriction only applies to photographs taken in connection with any business, profession or employment, any tourist photographs are okay and is on the initial taking of the photo within the square itself not 'of the square' from another location. However some people have had problems even when only taking tourist photos because of the equipment they are using. In these cases the photographer usually had an SLR camera, long lens and even a tripod and the official assumed they were professional and not a tourist and asked them to move on, whereas point and shoot cameras and camera phones are usually considered to be used by tourists.
Durdle Door and Lulworth Cove on the Dorset coast are well known and widely photographed, but has restrictions in terms of photographs being taken for commercial purposes. The land surrounding them is privately owned by the Lulworth Estate and I have heard that there are signs stipulating that photographs of the area must not be taken for commercial purposes without the owners permission. This will relate to the part of the land which has allowed public access under The Countryside and Rights of Way Act 2000, "access land". The landowner has a right to prevent photography for commercial purposes under section 2(1) of the Act gives the public a statutory right of access to certain kinds of land, but Schedule 2(1) lists the purposes for which Section 2(1) does not entitle any person to be on the land, and this list includes anyone who "engages in any activity which is organised or undertaken (whether by him or another) for any commercial purpose." However any part of the land which is a public right of way, i.e. a public footpath that runs along it then this would not apply and photography is allowed from the path. Similarly many pictures taken from the beach being below high tide will not be their estate and photos from the air or from a boat are not on their land either.
There are measures going through at the moment that will give public access to the entire coastline and beaches of Britain, and hopefully to cliffs as well making all coastal views truly public property whosever’s land they are on.
National Trust, already mentioned and English Heritage also have photo restrictions, and there have been some reports of people having problems or being asked for fees after the event. They also have restrictions that area applied to the inside of properties and is usually quoted as being to protect the furnishings and fragile nature of the contents, but often by arrangement and occasionally as organised groups they do put on photographic opportunities. Flash is of an extremely short duration, and the light that reaches items cannot damage them, so restrictions are partly to make it more pleasant for others but often to maintain a monopoly of supply. They also have restrictions for 'commercial photography' of the outside of their properties. These restrictions only apply to any photographs taken whilst on their property and not to those that have been taken from the public highway. They do not have copyright to the images of their properties.
Copyright of Buildings, monuments or structures situated in a public place is not infringed by taking a photograph of it. In the UK the owner of a property does not also own image rights to the property, and it is not an infringement of copyright to take a photograph of it. They can however place restrictions on photos being taken from their land, not the public highway. The Copyright, Designs and Patents Act 1988 allows photos to be taken of buildings, sculptures and works of artistic craftsmanship where they are permanently situated in a public place or place open to the public. However there will be some structures in what you consider to be public places that may be protected as in the case of the Royal Parks, Trafalgar Square etc as mentioned above. The answer here is to take care on where you are stood when the photo is being taken.
Some shopping centres for example will have restrictions as many are privately owned. If you are in a situation where it is not clear whether it is public or private and you are asked to move on then generally it would be a good idea to do so. The owner or their staff should be polite and point out why they are asking you to leave and as long as you comply everything should be okay. They do not have a right to arrest you, push you about, become aggressive or take your camera equipment away from you.
There is also a scheme called Leisurewatch, launched in 2001, brought in to help protect children in the community from those who may wish them harm. It is a joint venture between local authorities and police where local authority staff are allowed to ask individuals, and this could include photographers, their motives for being there and taking the pictures, if not satisfied with your response they are able to contact the police. You of course are likely to have long left before they arrive if they do at all. Signs will be displayed at accredited sites and may be found in recreational areas such as beaches, piers, parks and seafronts. If photographing in one of these areas be aware that you may get approached. You of course should never give identity information such as your name, address or date of birth to anyone, as they may be involved in identity theft.
There are many situations where you can take implied consent for granted. For example when being commissioned to photograph a wedding or being a guest at a wedding, you do not need specific permission to photograph in the grounds of the church or in the hall or usually the grounds where the reception is held. Similarly if you rent a property, be it for a long period or short, for private or business use then you would naturally expect to be able to take and use any photographs as you wished. There will be many other situations such as attendance at sporting events, shows and public events where it is naturally taken for granted that everyone can take photographs with no restrictions. There will be many other situations where you have not been told photography is restricted and where implied permission is therefore naturally granted although the property on which you photograph is owned by someone or some corporation.
Property Releases
Many stock photo libraries ask that Property Releases be obtained when the image contains an identifiable property, we will come back to look at property releases and why you may want to use them in some cases in a later article.
Access Rights and Photographic Limitations
The topic of what you can and cannot photograph, where you need permission and what use you can make of photographs is like anything that touches legal topics difficult and often irrational. Our objective here is to throw some light on this and to provide you with a general guide that will be of help without creating a large book in the process.
We are looking completely at England Scotland and Wales, different rules and conditions will exist elsewhere.
There are several areas to consider:
Some general pointers and comments Areas and items that we cannot photograph.Restrictions that apply to tourists, amateur and enthusiast photography, not intended for commercial use. Taking photographs that you intend to use in some commercial sense Being engaged in commercial photography
Land access
General areas and pointers
With few exceptions that we are covering below under areas that you cannot photograph, you are unlikely to encounter any major problems anywhere in the UK. The worst that will normally happen is that you will be asked to leave the premises or to stop taking photographs.
Generally you have the right to photograph anywhere that is public property, including public roads, footpaths, rights of way and between high and low tide at least if not the entire beach areas throughout the UK. Generally no person has the right of privacy of themselves or their property photographed from such a place.
On private property, that you have been granted access to, you can take photographs unless you are asked not to, or where in being granted access its not a contractual term that you do not take photographs, usually this is not a blanket restriction more of a commercial restriction on the use of the photographs.
You can be asked not to photograph on private property, or it can be made a condition of entry that you do not, however usually restrictions are not applied so widely but such items as commercial photography tends to be covered, so its not that they want to stop you taking photographs as much as seeing the potential to get cash out of those who they think will pay up. In many cases where photographers using better cameras get challenged, where others using point and shoot cameras, phones etc do not, its just that you look as if you might be doing something to make a pound or two, and lets face it the average security guard isn’t likely to know the difference between one photographer and another.
As a general guide if someone objects to what you are photographing, the best advice is to move on to another topic, after all there is no shortage of topics. A police officer who asks you to move on, is a risk to you if you don’t do it, as you could find yourself in trouble for causing an obstruction. People using tripods often get problems partly because they are in one place longer and therefore there is more chance when seen on a security camera for people to get to you, but also some are concerned about the risks of someone tripping over the tripod legs.
No one, other than a police officer who takes it for evidence, can take your camera away, and they are supposed to just take the card rather than the camera if you have taken it out of the camera , and no one can insist you delete photographs taken, but it’s a good idea to know how to hide images, see article on this, as this satisfies most, and defuses situations.
You have to consider how you use photographs and by doing so you don’t give anyone grounds to say that you defamed their character, so for example if you took a photo of a lady walking down a street and used it to illustrate a picturesque place to visit you could expect little problem but the same photo used to illuminate the problem of prostitution in some streets you can see could lead people to jump to conclusions about your subject.
Generally incidental items are not a problem, for example posters and photographs in the background, street scenes skylines, and public art like sculptures and the like. Buildings taken form the public right of way rather than private land are okay, but you do need to be aware of trademarks, although such items as a shop in a street scene would not present a problem.
The British legal system is expensive to use, so expensive and largely unpredictable that few without very large pockets would consider taking any action against you. Most corporations and individuals are unlikely to take action and many others have not to date taken action against photographers simply because they might loose and this would set a president limiting their actions in the future.
Areas and items that we cannot photograph
There are restrictions, you cannot photograph in a court or the precincts of a court, some witnesses and alleged victims in sexual cases cannot be photographed, you also cannot photograph people where a court has ruled their identity is not to be disclosed. You cannot photograph a judge in his fancy dress arriving at court. If you want to photograph anywhere near a court then you need to look at more detailed information relating to this that we cannot cover here.
You cannot, without permission, take photographs on the railways, railway stations and the like, but generally you will find that preservation railways have few restrictions anywhere the public are allowed to go, and often you can go on their lines if you buy a low cost lineside pass. Railway photographers wear an orange (not yellow) high visibility tabard or jacket, this helps the engine driver and officials to see you, and if you have one of these on you will find generally you get a lot of assistance particularly from railway enthusiasts and fellow photographers. Photographing any trains in the countryside, from field’s, roads and bridges is not going to present you with any problems. In towns and cities there is more concern about terrorism, and generally people are less friendly and suspicious.
Technically you should not photograph defence establishments but on open days, air shows and the like this is not a problem. Again if you are considered a terrorist suspect you may be challenged. In these establishments, airports, ports and the like there tends to be an occasional sudden emphasis on security before they drift back to their normal indifference.
There are also some restrictions on photographing some wildlife, particularly those species that are protected, in their natural environments in that your act of photographing might disturb them. For example some breeding birds are protected by law and you need a licence to photograph them at their nesting site, and for those where there are no restrictions take action to cause minimal disturbance to them. We will cover this in more detail in a later article.
Restrictions that apply to tourists, amateur and enthusiast photography not intended for commercial use.
Private property that you have no right to be on, is technically trespass, whatever your motive for being there. This could include a fence or wall you climbed on, but not the roadside verge outside, the ditch or fence that surrounds a property. It’s not a criminal offence to trespass in this way, but the landowner could take an action for damages if they can demonstrate they have incurred loss by your action. They could ask a court to impose a higher penalty but this would not be likely to happen unless you had repeatedly trespassed on the property when asked not to, or taken some completely unreasonable action.
Many concerts, performances and the like restrict photography, however often people do take photographs anyway. You could be asked to leave but are more likely first to be just asked not to take photographs.
Similar restrictions may apply where there are signs. But if you we charged entry and the sign was not visible before you entered it would be reasonable to expect to have your entry fee returned, if you decided to leave, as your main interest was taking photographs. If you contact many tourist sites by email they will confirm that you can take photographs, and carrying a copy of this with you would clear up the situation with any of their employees that challenged you. If they won’t allow photography then perhaps you don’t want to go.
Taking photographs that you intend to use in some commercial sense
And
Being engaged in commercial photography.
There is a difference between restrictions on commercial photography and photographs for some business or commercial use.
Commercial photography implies being involved in the activities as a commercial photographer, this is likely to involve going to a place to make a commercial or run a shoot with models, stylists, and a pre-defined client. If none of the apply you are not involved in commercial photography. Check the yellow pages or internet sites of commercial photographers, to get a better understanding of the services they provide, its basically commissioned advertising photography.
A commercial photographer does not go out and take speculative photos to potentially sell to someone, to put on picture libraries, and/or publish themselves as art or decorative products. The nearest they might get to this would be a commissioned advertising calendar. So if the restriction is no commercial photography, and you have no client and team etc. then this restriction does not apply to you.
Commercial use is more difficult to define. If you don’t think your photographs are for commercial use then restrictions do not apply.
Often other statements are used and you will need to consider their meaning, in your opinion are they trying to stop you doing something that implies a film crew, commercial shoot or the like or are they trying to just stop you selling any images taken from their property. It may be that they are concerned about insurance cover and liability to them if someone was injured, in other cases it may be that they want to share in the proceeds of your work or create a monopoly of supply of images to their own benefit. In other cases they may be just trying to limit damage that can occur with large groups of people involved in commercial operations.
You have two choices, to make up your own mind, or to ask.
Some councils also have bylaws, that appears to be about cashing in on the right to grant access to film in some areas, the Royal Parks, Trafalgar Square and Parliament Square are examples of this, its not that you cannot make a commercial with loads of people, its just they want a very large fee for granting you the right.
Some other organisations and businesses may make a reasonable charge to cover the cost of a staff member to come with you and make sure that everything is done right without putting the public or others at risk.
Land Access
Within the UK most land is owned by someone whether it be an individual or organisation, except for public highways or public rights of way, which is usually the term used for public footpaths that go across land. Determining which part of the land is the public part can be just as difficult as identifying who owns the land in the first place. With public highways when you come to footpaths or ground outside a particular building or structure for example like Trafalgar Square, where it becomes private and what is public and therefore you are allowed or not allowed to take a business/commercial photographs is just as difficult to see, there is no defined line on the ground that tells you. For the amateur photographer who is on holiday or a day visit and is taking pictures for their own private use this presents few problems. However for the photographer who wants to take pictures for 'commercial purposes', or has taken pictures in the past and now wants to sell them, then it becomes a mine field, and we wouldn't want to be standing on a mine when it goes off!
There are numerous online maps which show public rights of way and also access land as well as various websites giving out advice and help, see some of the links at the end. To find out who owns land the easiest and cheapest route is to ask somebody locally. Failing that it is possible to search the land registry for both properties with addresses and undeveloped land although there are fees, but not all properties are listed.
Private Property
Over the last few years large changes have occurred in the law in relation to the access of private land. This generally has opened up huge tracts of the countryside. Scotland has for some time had more access to some land, but in England and Wales it was the Countryside and Rights of Way Act that has opened up so much of the countryside.
There is no general restriction on taking photographs while on private property as long as the photographer has permission and owners or tenants do not normally have a right to stop someone from taking photos of their property from a public place. However the owner does have a right to impose conditions on entry, including restricting the taking of photographs. For example conditions of entry to many museums, stately homes and some concert venues do not allow photography, and if you do so then you become a trespasser and the owner can ask you to stop taking photographs and has to right to ask you to leave. If you fail to do so then they can take action for Trespass through the courts. There may also be restrictions in some attractions where you have paid an entrance fee. The effect of making the payment governs the terms and conditions under which you were allowed to enter and only if you were made aware of them. This can be done either on a notice/sign as you enter, a note on a ticket that says that entry is subject to terms and conditions etc. If you ignore the prohibition you would be in breach of contract and could be sued for damages, although there is other legislation called the unfair contract terms act that would mean if tested many of these restrictions would not apply as you had no way of knowing of their existence and did not agree to them. It is obvious that you could not write into the small print that as condition of entry you were committing to pay a weekly subscription for life, or a part of your income. It could therefore be argued that any attempt to get a part of your income relating to the sale of a photograph, was also a completely unfair expectation.
The National Trust is an example of this, they have their own commercial picture library and try to maintain a monopoly of supply of images of their properties. There have been occasions where photographers have taken images and they have been published and the National Trust has then sent them a bill for 50% of what they assume they received for the images, equivalent of their share had they sold one of the images on their library, taken by you, had you submitted it and had it accepted to be included. Many photographers will just pay this, but my understanding is that if you do not they will not test it by taking it to court as they are not convinced they would win. A lot would depend on if you were aware of restrictions and how you were told, particularly as they generally encourage people to go and photograph the outside of their properties.
Trespass is not a criminal offence, and generally you are not arrested for simple trespass, but the owner can take action through the civil courts and might be awarded damages even if none were actually done. However there are some exceptions to this including trespassing on MOD land and the railways which can get you arrested and prosecuted. There is also an issue of trespass to a person, this is where you force someone to have their photo taken or block their way to get that shot, this is considered as trespass to person. Also there is a new offence called Aggravated Trespass, which is an 'arrestable offence’ and it is committed when two or more people trespass on land with the purpose of disrupting a lawful activity’, it was brought in to prevent illegal raves, but it can be used against photographers.
Restrictions in some Public Places
Some places that we think of as being public do have photo restrictions, and there are bylaws governing the requirement of getting written permission from the relevant authority/owner and paying a hefty fee and this includes Trafalgar Square, Parliament Square and the Royal Parks. The restriction only applies to photographs taken in connection with any business, profession or employment, any tourist photographs are okay and is on the initial taking of the photo within the square itself not 'of the square' from another location. However some people have had problems even when only taking tourist photos because of the equipment they are using. In these cases the photographer usually had an SLR camera, long lens and even a tripod and the official assumed they were professional and not a tourist and asked them to move on, whereas point and shoot cameras and camera phones are usually considered to be used by tourists.
Durdle Door and Lulworth Cove on the Dorset coast are well known and widely photographed, but has restrictions in terms of photographs being taken for commercial purposes. The land surrounding them is privately owned by the Lulworth Estate and I have heard that there are signs stipulating that photographs of the area must not be taken for commercial purposes without the owners permission. This will relate to the part of the land which has allowed public access under The Countryside and Rights of Way Act 2000, "access land". The landowner has a right to prevent photography for commercial purposes under section 2(1) of the Act gives the public a statutory right of access to certain kinds of land, but Schedule 2(1) lists the purposes for which Section 2(1) does not entitle any person to be on the land, and this list includes anyone who "engages in any activity which is organised or undertaken (whether by him or another) for any commercial purpose." However any part of the land which is a public right of way, i.e. a public footpath that runs along it then this would not apply and photography is allowed from the path. Similarly many pictures taken from the beach being below high tide will not be their estate and photos from the air or from a boat are not on their land either.
There are measures going through at the moment that will give public access to the entire coastline and beaches of Britain, and hopefully to cliffs as well making all coastal views truly public property whosever’s land they are on.
National Trust, already mentioned and English Heritage also have photo restrictions, and there have been some reports of people having problems or being asked for fees after the event. They also have restrictions that area applied to the inside of properties and is usually quoted as being to protect the furnishings and fragile nature of the contents, but often by arrangement and occasionally as organised groups they do put on photographic opportunities. Flash is of an extremely short duration, and the light that reaches items cannot damage them, so restrictions are partly to make it more pleasant for others but often to maintain a monopoly of supply. They also have restrictions for 'commercial photography' of the outside of their properties. These restrictions only apply to any photographs taken whilst on their property and not to those that have been taken from the public highway. They do not have copyright to the images of their properties.
Copyright of Buildings, monuments or structures situated in a public place is not infringed by taking a photograph of it. In the UK the owner of a property does not also own image rights to the property, and it is not an infringement of copyright to take a photograph of it. They can however place restrictions on photos being taken from their land, not the public highway. The Copyright, Designs and Patents Act 1988 allows photos to be taken of buildings, sculptures and works of artistic craftsmanship where they are permanently situated in a public place or place open to the public. However there will be some structures in what you consider to be public places that may be protected as in the case of the Royal Parks, Trafalgar Square etc as mentioned above. The answer here is to take care on where you are stood when the photo is being taken.
Some shopping centres for example will have restrictions as many are privately owned. If you are in a situation where it is not clear whether it is public or private and you are asked to move on then generally it would be a good idea to do so. The owner or their staff should be polite and point out why they are asking you to leave and as long as you comply everything should be okay. They do not have a right to arrest you, push you about, become aggressive or take your camera equipment away from you.
There is also a scheme called Leisurewatch, launched in 2001, brought in to help protect children in the community from those who may wish them harm. It is a joint venture between local authorities and police where local authority staff are allowed to ask individuals, and this could include photographers, their motives for being there and taking the pictures, if not satisfied with your response they are able to contact the police. You of course are likely to have long left before they arrive if they do at all. Signs will be displayed at accredited sites and may be found in recreational areas such as beaches, piers, parks and seafronts. If photographing in one of these areas be aware that you may get approached. You of course should never give identity information such as your name, address or date of birth to anyone, as they may be involved in identity theft.
There are many situations where you can take implied consent for granted. For example when being commissioned to photograph a wedding or being a guest at a wedding, you do not need specific permission to photograph in the grounds of the church or in the hall or usually the grounds where the reception is held. Similarly if you rent a property, be it for a long period or short, for private or business use then you would naturally expect to be able to take and use any photographs as you wished. There will be many other situations such as attendance at sporting events, shows and public events where it is naturally taken for granted that everyone can take photographs with no restrictions. There will be many other situations where you have not been told photography is restricted and where implied permission is therefore naturally granted although the property on which you photograph is owned by someone or some corporation.
Property Releases
Many stock photo libraries ask that Property Releases be obtained when the image contains an identifiable property, we will come back to look at property releases and why you may want to use them in some cases in a later article.