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Photography & legal threats.

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smartybones
7 Jun 2011 - 7:05 PM

I recently took some photographs at a UK theme park and posted them on flickr. A week or so later I was contacted by a media company asking permission to use my photographs in a magazine. On the first visit, some of the rides were not open so I went back again to get some additional shots.

On this visit I was approached by a security guard who then told me that I was not allowed to take photographs. I asked him about the other people in the park and was he going to ask them to stop using their camera? I then explained that I was taking photographs of the rides for a magazine article. He was ok with this and told me if I had any more problems with security then to let them know I had spoken to him already.

Afterwards I posted one of the pictures on the parks website and commented that I was asked not to take photographs by security.

Today I get a message saying the following


Quote: It is commonly accepted that when taking photos on private property for commercial use requires permission from the owners. No response does not constitute a yes. You now have my contacts so in future please run anything like this past me.

In the case of xxxxxxxxxxxx all rides and characters are trademarked and publication of any of these without their consent is an infringement of this trademark. I have to get approval from xxxxxxxxxxx on any images of xxxxxxxxxxxxxxx that go to press.

Would you be able to send me the images along with the name of the publication, a contact there and the estimated date of publication and I will seek approval from them.


My standpoint is that I did gain authorization (from the security guard) and as the pictures were to be used in a legitimate editorial publication then they do not need to be licensed. Not only that, but trademark infringement can only be claimed after publication and would be a matter between the trademark holder and the publisher but not the photographer.

Nowhere in the park or on the parks website does it indicate that you need any permission to take photographs commercial or otherwise.

can anyone confirm that my standpoint is correct or am I in the wrong here?

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7 Jun 2011 - 7:05 PM

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JamesGarfield

Hi
My gut feeling on this is that the security guard was unlikely to have the authority to grant you permission to take the pictures for a publication within the park. He may have assumed that you'd already sort permission from the parks owners to do so. As you've already let the security guard know it was for a magazine article then they would naturally play the infringement card as presumably he'd have reported this back to the powers that be?

Last Modified By JamesGarfield at 7 Jun 2011 - 7:14 PM
samfurlong
7 Jun 2011 - 7:30 PM

Sticky one (and I am missing some of the finer points for ease) but in a nutshell:

Once you have taken photos no one - not even a police officer can make you delete them or stop you from publishing them (unless they get a court injunction). Once published however, if the park decide it is defamatory or harms their business then they could in theory take the magazine (not you) to court. There is nothing against the law in the use of the photos per-se and it is worth nothing that editorial articles (which I assume you were doing from your description) are very very rarely litigated against - if you were shooting an ad campaign or something else then fair enough but editorial stuff is given much more leeway legally than other forms of publishing.

However, a park (or any owners of private land) can impose whatever conditions they wish upon entry to the premises and that includes photography bans, banning photos for commercial use, banning 'professional' looking equipment (and they don't have to define that, it can just be left up to security as to what looks 'professional' to them). Whether they stop everyone or just you from taking pics is irrelevant , that's your own fault for firstly sticking out like a sore thumb with an SLR and great big white L lens (or similar), and secondly for being so bloody honest, you should have just said you were an photography enthusiast or have sought permission from management through formal channels well in advance.

They can at any time ask you to stop taking photos and you must comply, or leave. If you do not comply then what happens is that they technically withdraw permission for you to be in the park (as you are breaking their conditions of entry) and then you are trespassing. Then they can ask you to leave, you refuse, at which point it becomes 'aggravated trespass' and they can call the cops and forcably remove you.

Basically their park... their rules... end of...
If you really really want to take some more pics then do it from outside of the parks boundaries looking in (nowt they can do about that), or do it surreptitiously. If caught you'll probably get chucked out but that's about the only consequence.. then you're back to my first point about what you do with the images regarding publishing.

Last Modified By samfurlong at 7 Jun 2011 - 7:34 PM
smartybones
7 Jun 2011 - 10:48 PM

thanks for your comments james & sam,

the way I view the security guard is that it wound be his job to intercept anyone who is breaking the rules of the park and if I did need permission before hand to take photographs, and I did not have it, he should have stopped me. The fact that he allowed me to continue I think is enough to say I was authorised. In his job, he is acting as a representative of the land owner in regards to rules of the park?

also, just to add, the country the magazine is in is not in the UK (China) so could a court actually issue an injunction against my work? I really don't think they can.

To be honest, I am sick of the bullying against photographers, there is too much of it these days and it makes me more determined to get my pictures published just to annoy them some more..

Marty.

filmforever
7 Jun 2011 - 10:57 PM

To add to the above, I'm sure the majority do not realise that the main parks in Central London, are legally "private property", owned by the Crown. The Parks Police, can at anytime ask you to stop taking pictures and order you out of the park, as happened to me and news photographer colleagues, when we were waiting to photograph a resident in Regents Park who had come into the news.
The explanation the police gave was: "People are only allowed be in Regents Park by kind grace and favour of her Majesty the Queen".
At any time they can close the parks to the public and it becomes their own private property again.

mikehit
mikehit  46171 forum posts United Kingdom9 Constructive Critique Points
7 Jun 2011 - 11:27 PM


Quote: Then they can ask you to leave, you refuse, at which point it becomes 'aggravated trespass'

Much as your post is very helpful, I am sure this part is incorrect. Aggravated trespass is where the trespasser acts with the intention of disrupting a lawful activity being carried out on or adjacent to that land. Just trefusing to leave does not fall into that category.

samfurlong
7 Jun 2011 - 11:59 PM


Quote: Much as your post is very helpful, I am sure this part is incorrect. Aggravated trespass is where the trespasser acts with the intention of disrupting a lawful activity being carried out on or adjacent to that land. Just trefusing to leave does not fall into that category.


Either way, they still have the right to call the police if you refuse to leave.

filmforever
8 Jun 2011 - 12:02 AM


Quote:
Much as your post is very helpful, I am sure this part is incorrect. Aggravated trespass is where the trespasser acts with the intention of disrupting a lawful activity being carried out on or adjacent to that land. Just trefusing to leave does not fall into that category.

I think you'll find the police won't worry overmuch about the fine details, they'll still have you out of there, whether it's a case of "aggravated trespass" or "obstructing a police officer"

Carabosse
Carabosse e2 Member 1139392 forum postsCarabosse vcard England269 Constructive Critique Points
8 Jun 2011 - 12:13 AM


Quote: A week or so later I was contacted by a media company asking permission to use my photographs in a magazine.

At that point an email to the park managers (not security operatives!) would have been judicious before giving permission to the media company.

keithh
keithh  1022789 forum posts Wallis and Futuna29 Constructive Critique Points
8 Jun 2011 - 8:02 AM

Sometimes we dig our own graves.

peterjones
peterjones e2 Member 123856 forum postspeterjones vcard United Kingdom1 Constructive Critique Points
8 Jun 2011 - 9:33 AM

UK law is vague in these matters however the Royal Parks, Trafalgar and Parliament Square prohibit any photography intended for any kind of business use unless permission is obtained from the GLA and you pay a sizeable fee.

Other property owner can prohibit photography in the same vein: a property owner may permit entry into his/her property on the condition that he/she takes no pictures; if the individual does take picture then he/she becomes a trespasser as soon as a photo is taken.

A big however is that there appears to be no legal precedent set; if you check the stock libraries they have 000's of RM images for sale of the Royal Parks, Trafalgar and Parliament Square; no action is taken against photographers because the owners choose not to; the National Trust makes a lot of noise about the same issue but I am unaware that they have taken any specific action against an individual.

The law in many ways is an ass and in the end one can only rely on conscience, general knowledge and common sense but if the law is flouted and somebody grumbles we can only give in with good grace.

Peter.

Last Modified By peterjones at 8 Jun 2011 - 9:54 AM
mikehit
mikehit  46171 forum posts United Kingdom9 Constructive Critique Points
8 Jun 2011 - 10:08 AM

Would police get involved? Trespass is a civil matter, not a criminal one. It becomes criminal if you commit damage to the proporty or nick something. They may be able to extend to behaviour likely to cause a breach of the peace but I am sure that would only happen if the secruity started kicking up and then it becomes assult by them.

I don't know on this one, just interested if anyone knows the answer.

smartybones
8 Jun 2011 - 10:55 AM

thanks for your replies,

As i have understood it, (from prior knowledge, this thread and other articles in the interwebs) even if photography is not allowed on private property, (in this case it was a large theme park) if you do take photographs then you can be asked to ether stop taking photographs or leave. failing to leave is then trespassing. You can be a total a$$ and leave very slowly, even taking more photos on t way out, but so long as you are leaving there is not much they can do. If they in anyway physically try to remove you from the private property or physically try to stop you taking photographs then this is assault and then they are at the wrong end of the law.

Once you have taken a photograph, then its your property. you own the copyright. You can do what you like with that photograph. Although depending on how the photograph is used, legal action can be taken against the publisher. If anyone deletes (read as destroys) your images this is criminal damage. Nobody has the right to force you or intimidate you into showing them your photographs. Even the police need a warrant as it would go beyond what's allowed by a stop and search. If anyone forces you to delete the images then this I believe would be aggravated criminal damage. If by some circumstance you are arrested and your camera is taken as evidence, if the police delete any photographs then that would be tampering with evidence and/or criminal damage.

Taking Photographs of trademarked items is a bit more of a grey area. Its a matter of deciding what is fair use or not. Taking a picture of something to sell on ebay is clearly fair use. photographing something for an editorial review is also fair use. Taking a photograph of say a buzz lightyear toy and selling framed copies of that picture would be in breach of Disney's Trademark. And in my case, a picture of a trademarked character themed theme park ride for a editorial review of the park is indeed fair use. Without this "fair use" then if a trademark owner didn't like the review of their product, then they could effectively silence any negative comments of said product.

pabloisme
pabloisme  4565 forum posts England
8 Jun 2011 - 10:55 AM

all this stuff about "image rights" back to hoary old chestnut bet they have terms & conditions when you paid to go in?

even worse when you get private street police stopping you taking pix! "you cant take picture of our building!"

ah & keith but a bit more difficlt filling in yer own grave!

smartybones
8 Jun 2011 - 11:02 AM


Quote: Would police get involved? Trespass is a civil matter, not a criminal one.

The problem is that if someone is trespassing, they do not comply with a polite request to leave, and if they then do not, the landowner has little if any further recourse.

Section 61 of the Criminal Justice and Public Order Act 1994 allows the senior police officer attending the scene of an incident involving a trespass or nuisance on land to order trespassers to leave the land and to remove their vehicles as soon as reasonably practicable.

The power can only be used when there are two or more people there and "are present there with the common purpose of residing there for any period, [and] that reasonable steps have been taken by or on behalf of the occupier to ask them to leave" and either the trespassers have six or more vehicles between them, or they have caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour - or both. So really it's not likely to cover anything other than a major invasion. This power is not often used, but for practical purposes this is the only instance where you might get the police to come and actually remove trespassers from a bit of land.

section 61 appears to be included to prevent gypsys from settling on someones land. so in fact, its near enough impossible for someone to stop a photographer taking photographs on private property even if it is against the rules so long as you are on your own the police cannot get involved.

The land owner could seek damages from you, but he would have to prove that you did cause damage.

Its a very grey area all together and my best advice is make yourself well aware of all the different laws and regulations, even to a point carry a laminate in your camera bag quoting the laws, because surprisingly enough many of the police officers & security guards you may come across will not know the laws they are trying to enforce on you.

Last Modified By smartybones at 8 Jun 2011 - 2:57 PM

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